Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions: (a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities. (b) [Reserved]. (c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). (d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto. (e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto. (f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto. (g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto. (h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below. (i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and (ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”). (i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities. (j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. (a) The obligations satisfaction or waiver by the ---------- Underwriters of all conditions precedent to the closing of the parties purchase and sale of the Firm Shares under this Purchase the Underwriting Agreement are subject shall be conditions precedent to the obligation of FBR to purchase and pay for the Shares hereunder. The following conditionsshall also be conditions precedent to the obligation of FBR to purchase and pay for the Shares:
(ai) The representations and warranties contained herein made by the Company in Section 4 below shall be accurate true and correct as of the date Closing Date, provided that this clause (i) shall not apply to the extent that any truth or accuracy of delivery a representation and warranty in Section 4 below is also a condition precedent to the obligations of the Preferred SecuritiesUnderwriters under the Underwriting Agreement and such condition precedent has been waived by the Underwriters.
(bii) [Reserved]The Company and each other party indicated in the signature blocks thereto shall have executed and delivered a Third Amended and Restated Registration Rights Agreement, substantially in the form set forth in Annex A hereto (the "Registration Rights Agreement"), and the Shares shall constitute "Registrable Securities" as defined in the Registration Rights Agreement.
(ciii) FBR shall have received legal opinions of Fried, Frank, Harris, Shriver and Jacobson ("FFHSJ"), and Sutherland A▇▇▇▇▇ & Bren▇▇, ▇ ▇▇▇▇ ("SAB"), special ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇omp▇▇▇, ▇▇▇▇▇▇ & Fingereach case in form and substance reasonably satisfactory to FBR, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchasereffect set forth in clauses (ii), JPMorgan Chase Bank, National Association, the Delaware Trustee (iii) and the Company, in substantially the form set out in Annex C hereto.
(fiv) The Purchaser shall have received of Section 4(a) below (it being understood that the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for SAB shall be limited to certain matters arising under the Property Trustee Investment Company Act of 1940 and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received that the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed FFHSJ need not express an opinion with respect to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trustsuch matters, in each case dated to an extent consistent with the Closing Date, and, in respective opinions of such counsel contemplated to be provided to the case Underwriters pursuant to the Underwriting Agreement).
(b) The following shall be conditions precedent to the obligation of the Company, as Company to (i) issue and (ii) below and, in sell the case of the Trust, as Shares to (i) below.FBR:
(i) the representations and warranties made by FBR in this Purchase Agreement are Section 4(b) below shall be true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have 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; and.
(ii) since October 31, 2004 (as defined below), there has been no material adverse change FBR shall have executed and delivered a "lock-up" agreement relating to the Shares substantially in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring form set forth in the ordinary course of business (a “Material Adverse Change”)Annex B hereto.
(iiii) Subsequent to the execution FFHSJ shall have received a legal opinion of this Purchase Agreementcounsel of Friedman, there shall not have been any changeBillings, Ramsey & Co., Inc. (or any development involving a prospective change, in or affecting the condition (financial or othersuch other counsel as FFH▇▇ ▇▇▇ approve), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance reasonably satisfactory to FFHSJ , to the Purchaser or its counseleffect that FBR is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice together with permission for FFHSJ to rely on such opinion for purposes of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee delivery of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions opinion contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitySection 3(a)(iii) above.
Appears in 1 contract
Conditions. The effectiveness of this Agreement and the obligations of the parties under this Purchase Agreement each Lender hereunder are subject to the following conditionsconditions precedent:
(a) The representations and warranties contained herein Administrative Agent shall have received all of the following, each of which shall be accurate an original unless otherwise specified, each properly executed by a Responsible Official of each party thereto, each dated as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser Date and JPMorgan Chase Bank, National Association, each in form and substance satisfactory to the Purchaser; Administrative Agent and its legal counsel (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are unless otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, andspecified or, in the case of the Company, as to (i) and (ii) below and, in the case date of any of the Trustfollowing, as to (i) below.unless the Administrative Agent otherwise agrees or directs):
(i) executed counterparts of this agreement, sufficient in number for distribution to the representations Lenders and warranties the Company;
(ii) Notes executed by the Company in this Purchase Agreement are true and correct on and as favor of each Lender in an amount equal to that Lender's Pro Rata Share;
(iii) the Guaranty executed by each of the Closing Date with the same effect as if made on the Closing Date, and Guarantor Subsidiaries;
(iv) a Certificate executed by a Responsible Official of each of the Company and each Guarantor Subsidiary, attaching a good standing certificate as to each such person and a resolution authorizing the Trusttransactions contemplated hereby, as applicableand certifying that there have been no amendments or other changes to the articles of incorporation, bylaws or other organizational papers of such Persons which have complied not been delivered to the Administrative Agent in connection with the Bank Credit Agreement (other than any amendments or other changes attached thereto) and setting forth exemplars of the signatures of all Persons authorized to sign the agreements and satisfied all Loan Documents on behalf of each such Person;
(v) the Opinion of Counsel;
(vi) a Certificate of a Responsible Official signed by a Senior Officer of the Company certifying that the conditions on specified in Sections 6.1(b) through (g) of the Agreement have been satisfied;
(vii) a Certificate of a Responsible Official of the Company signed by a Senior Officer thereof, certifying as to the Solvency of the Company and its part to be performed or satisfied at or prior to Guarantor Subsidiaries as of the Closing Date; and
(iiviii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets payment of all fees and expenses of the Company and its subsidiaries taken as a whole, whether Administrative Agent required hereby or not arising from transactions occurring in pursuant to the ordinary course terms of business (a “Material Adverse Change”)the Agent's Letter.
(ib) Subsequent to As of the execution Closing Date, the representations and warranties contained in Article IV of this Purchase Agreement, there Agreement shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor be true and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.correct;
(jc) Prior to As of the Closing Date, the Company and its Subsidiaries and any other Parties shall be in compliance with all the Trust terms and provisions of the Loan Documents, and no Default or Event of Default shall have furnished occurred and be continuing;
(d) No material adverse change in the property, operations, business prospects, profits or financial condition of the Company and its Subsidiaries, taken as a whole, since December 31, 1997;
(e) Following June 30, 1998, the Company shall have received not less than $14,550,000 in additional cash equity contributions from the Sponsors, pursuant to instruments, documents and agreements acceptable to the Purchaser and Administrative Agent in its counsel such further information, certificates and documents as the Purchaser sole discretion;
(f) The Company shall have acquired (or its counsel may reasonably request. If any shall concurrently acquire) substantially all of the conditions specified assets of Caribbean Air Services, Inc. in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any accordance with the terms of the opinions, certificates and documents mentioned above or elsewhere in this CAS Purchase Agreement and all applicable laws;
(g) There shall not be then pending or threatened any action, suit, proceeding or investigation against or affecting the Company or any of its Subsidiaries or any Property of any of them before any Governmental Agency that could reasonably satisfactory be expected to have a Material Adverse Effect;
(h) The Administrative Agent shall have timely received a Pricing Designation in compliance with Article II; and
(i) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Purchaser Administrative Agent, such other assurances, certificates, documents or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given consents related to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, foregoing as the case Administrative Agent reasonably may be, and not by such trustee or officer in any individual capacityrequire.
Appears in 1 contract
Sources: Credit Agreement (Geologistics Corp)
Conditions. 3.1 Closing Conditions for the Benefit of the Purchaser
3.1.1 The obligations of the parties under Purchaser to complete the transactions contemplated in this Purchase Agreement are shall be subject to the satisfaction of, or compliance with, at or before the Time of Closing, each of the following conditions:conditions precedent (each of which is hereby acknowledged to be inserted for the exclusive benefit of the Purchaser and may be waived by the Purchaser in writing in whole or in part):
(a) The each of the representations and warranties contained herein of ▇▇▇▇▇▇ Resources made in or pursuant to this Agreement, the Schedules or in any Closing Document delivered pursuant hereto shall be accurate true and correct in all material respects (other than those representations and warranties that are qualified by materiality which shall be true and correct in all respects) as at the date of this Agreement and as of the date Time of delivery Closing as though such representations and warranties were made at and as of the Preferred Securities.Time of Closing (except insofar as such representations and warranties are stated to be given as of a particular date or for a particular period and relate solely to such date or period);
(b) [Reserved].all obligations, agreements and covenants of ▇▇▇▇▇▇ Resources to be completed prior to Closing shall have been performed or completed by ▇▇▇▇▇▇ Resources in all material respects, as applicable;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇ Resources shall have delivered to the Purchaser a certificate from a senior officer of ▇▇▇▇▇▇ & ▇▇▇Resources certifying that the conditions of Subsection 3.1.1(a) and Subsection 3.1.1(b) have been satisfied;
(d) the Purchaser shall have received at the Closing an officer’s certificate of ▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinionResources, dated as of the Closing Date, addressed in form and substance reasonably satisfactory to the Purchaser, as to: (a) its constating documents; (b) a resolution of the board of directors of ▇▇▇▇▇▇ Resources authorizing the execution and delivery of this Agreement, the NSR Royalty Agreement, the Security Document and any other Closing Document required for the completion of the transactions contemplated hereby; and (c) incumbency and signatures of the signatories of ▇▇▇▇▇▇ Resources executing this Agreement or any of the Closing Documents;
(e) all consents or approvals from, or notifications to any Person required to create and sell the NSR Royalty and to create and grant the Security Interest, will have been obtained or given on or before the Time of Closing in form satisfactory to the Purchaser, acting reasonably;
(f) the Purchaser shall have received evidence of any material amendments to the Debt Documents or waiver of covenants provided in connection with the Debt Documents;
(g) no order or judgment of any court or any Governmental Body shall have been issued or made and no legal or regulatory requirement shall remain to be satisfied, in either case which has the effect of making void, unlawful or otherwise prohibiting the creation and sale of the NSR Royalty as contemplated herein (an “Unsatisfied Judgment”);
(h) all Governmental Approvals with respect to approval by any Governmental Body of the creation and sale of the NSR Royalty and the creation and grant of the Security Interest shall have been obtained;
(i) no action or proceeding will be pending or threatened by any person to enjoin, restrict or prohibit the purchase and sale of the NSR Royalty or the creation and grant of the Security Interest contemplated hereby;
(j) no change, effect, event, development, occurrence or state of facts or combination thereof that is, or would be, material and adverse to the NSR Royalty, the Security Interest, the Property or the Project, shall have occurred since the date of this Agreement;
(k) ▇▇▇▇▇▇ Resources shall deliver to the Purchaser an opinion of its counsel dated the Closing Date in form acceptable and JPMorgan Chase Banksatisfactory to both counsel for ▇▇▇▇▇▇ Resources and counsel for the Purchaser, National Associationeach acting reasonably, with respect to
(i) the incorporation and extra-provincial existence of ▇▇▇▇▇▇ Resources under its jurisdiction of incorporation and the Business Corporations Act (Saskatchewan), as applicable,
(ii) the corporate power, authority and capacity of ▇▇▇▇▇▇ Resources to own its assets and carry on its business as presently carried on by it and to enter into this Agreement, the NSR Royalty Agreement and the Security Document,
(iii) the enforceability of this Agreement, the NSR Royalty Agreement and the Security Document,
(iv) the execution and delivery of this Agreement, the NSR Royalty Agreement and the Security Document not requiring any Governmental Approval or conflicting with or resulting in a breach or violation of the constating documents of ▇▇▇▇▇▇ Resources,
(v) the Security Interest granted by ▇▇▇▇▇▇ Resources being in accordance with the terms of this Agreement and in compliance with Applicable Law,
(vi) the validity of the Security Interest, and
(vii) the ownership and good standing of the mineral dispositions comprising the Property, the foregoing being subject to reasonable assumptions and qualifications;
(l) the arrangements shall have been made to the satisfaction of the Purchaser, acting reasonably, for registration of the NSR Royalty Agreement and the Security Document in those public registers and offices in which, in the Purchaser’s and its counsel’s opinion, registration is necessary or of advantage to preserve, protect and perfect the same;
(m) the senior secured lenders of ▇▇▇▇▇▇ Resources shall have provided confirmation to the Purchaser that they will not take any action to invalidate, disclaim or terminate the NSR Royalty Agreement if an event of default occurs, or an insolvency, bankruptcy or similar event occurs;
(n) ▇▇▇▇▇▇ Resources shall have duly authorized, executed and delivered this Agreement, the NSR Royalty Agreement, the Security Document and any other Closing Document requiring same, all in form and substance satisfactory to the Purchaser; Purchaser acting reasonably;
(iio) the Company ▇▇▇▇▇▇ Resources shall have furnished delivered one or more CDs, DVDs or hard drives containing the contents of the Data Room Information; and
(p) ▇▇▇▇▇▇ Resources shall deliver to the Purchaser such other documents as the Purchaser may reasonably require pursuant to the transactions contemplated hereunder.
3.1.2 If any condition in Section 3.1.1 shall not have been satisfied in all material respects at or prior to the Time of Closing, the Purchaser may at its sole option either:
(a) rescind this Agreement by written notice to ▇▇▇▇▇▇ Resources and, in such event, the Parties shall be released from all obligations, except that ▇▇▇▇▇▇ Resources will still be obligated to pay to the Purchaser the opinion of the Company’s General Counsel fees and expenses contemplated in form and substance satisfactory to the PurchaserSection 8.3; and or
(iiib) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of waive compliance with any such certificates term, covenant or documents are delivered to the Purchaser) and by and condition in whole or in part on such terms as may be agreed upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, with ▇▇▇▇▇▇ & Maw LLPResources without prejudice to any of its rights of rescission in the event of non-performance of any other term, special tax counsel covenant or condition in whole or in part.
3.2 Closing Conditions for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion Benefit of ▇▇▇▇▇▇ Resources
3.2.1 The obligations of ▇▇▇▇▇▇ Resources to complete the transactions contemplated in this Agreement shall be subject to the satisfaction of, or compliance with, at or before the Time of Closing, each of the following conditions precedent (each of which is hereby acknowledged to be inserted for the exclusive benefit of ▇▇▇▇▇▇ Resources and may be waived by ▇▇▇▇▇▇ Resources in writing in whole or in part):
(a) each of the representations and warranties of the Purchaser made in or pursuant to this Agreement, the Schedules or in any Closing Document delivered pursuant hereto shall be true and correct in all material respects (other than those representations and warranties that are qualified by materiality which shall be true and correct in all respects) as at the date of this Agreement and as of the Time of Closing as though such representations and warranties were made at and as of the Time of Closing (except insofar as such representations and warranties are stated to be given as of a particular date or for a particular period and relate solely to such date or period);
(b) all obligations, agreements and covenants of the Purchaser to be completed prior to Closing shall have been performed or completed by the Purchaser in all material respects, as applicable;
(c) the Purchaser shall have delivered to ▇▇▇▇▇▇ Resources a certificate from a senior officer of the Purchaser certifying that the conditions of Subsection 3.2.1(a) and Subsection 3.2.1(b) have been satisfied;
(d) the Cash Purchase Price shall have been paid to ▇▇▇▇▇▇ Resources by the Purchaser;
(e) ▇▇▇▇▇▇ Resources shall have received at the Closing from the Purchaser an officer’s certificate of the Purchaser, dated as of the Closing Date, in form and substance reasonably satisfactory to ▇▇▇▇▇▇ Resources, as to: (a) its constating documents; (b) a resolution of the board of directors of the Purchaser authorizing the execution and delivery of this Agreement, the NSR Royalty Agreement, the Security Document and any other Closing Document required for the completion of the transactions contemplated hereby; and (c) incumbency and signatures of the signatories of the Purchaser executing this Agreement or any of the Closing Documents; and
(f) the Purchaser shall deliver to ▇▇▇▇▇▇ Resources all other documents as ▇▇▇▇▇▇ Resources may reasonably require pursuant to the transactions contemplated hereunder.
3.2.2 If any condition in Section 3.2.1 shall not have been satisfied in all material respects at or prior to the Time of Closing, ▇▇▇▇▇▇ & FingerResources may at its option, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed either:
(a) rescind this Agreement by written notice to the PurchaserPurchaser and, JPMorgan Chase Bank, National Associationin such event, the Delaware Trustee and the CompanyParties shall be released from all obligations hereunder, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ except that ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed Resources will still be obligated to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed pay to the Purchaser the fees and JPMorgan Chase Bank, National Association, expenses contemplated in substantially the form set out in Annex E hereto.Section 8.3; or
(hb) The Company shall have furnished to waive compliance with any such term, covenant or condition in whole or in part on such terms as may be agreed upon with the Purchaser a certificate without prejudice to any of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer its rights of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, rescission in the case event of the Companynon-performance of any other term, as to (i) and (ii) below and, covenant or condition in the case of the Trust, as to (i) belowwhole or in part.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Royalty Purchase Agreement
Conditions. The obligations of It shall be a condition to Lender’s obligation to extend the parties under this Purchase Agreement are subject to the following conditionsLoan that:
(a) The At the time of the making of the Loan, the representations and warranties contained herein of Borrower under Article II hereof shall be accurate as of true and correct in all material respects (except to the date of delivery of the Preferred Securities.extent such representations and warranties are subject to a materiality qualifier, in which case such representations shall be true and correct in all respects);
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for All documents executed and delivered in connection with the Sellers (the “Company Counsel”), Loan shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, be in form and substance satisfactory to the Purchaser; Lender and its counsel;
(iic) the Company shall have furnished Any consent required for Borrower to the Purchaser the opinion of the Company’s General Counsel in form execute and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opiniondeliver this Agreement, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor Note and the Trust other Loan Documents, and by government officials (provided, however, that copies of any such certificates or documents are to perform its obligations hereunder and thereunder have been validly obtained and delivered to the Purchaser) Lender and by remain in full force and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).effect;
(d) The Purchaser shall Purchase Agreement and the other transaction documents contemplated thereby (such documents, as each may be amended, supplemented or otherwise modified, collectively, the “Transaction Documents”) (if any) required to be signed concurrently with the Purchase Agreement by the terms thereof have been furnished executed by the opinion parties as of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.even date herewith;
(e) The Purchaser Lender shall have received the opinion be in receipt of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed such certificates of good standing (to the Purchaserextent such concept exists in the applicable jurisdiction) from the applicable secretary of state (or similar body of the relevant jurisdiction) of the state (or other jurisdiction) of organization of each Borrower, JPMorgan Chase Bankcopies of resolutions or other corporate or limited liability company action, National Associationincumbency certificates and/or other certificates of responsible officers of each Borrower as the Lender may reasonably require evidencing the identity, authority and capacity of the Delaware Trustee Borrowers and the Company, in substantially the form set out in Annex C hereto.such officers; and
(f) The Purchaser Lender shall have received be in receipt of the opinion documents set forth on Item 11 of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPthe Loan Schedule (the “Loan Security Documents”) required to be executed on the date the Loan is made hereunder (such date, special counsel for the Property Trustee and the Indenture Trustee, dated the “Closing Date”) as indicated on such schedule, addressed to the Purchaserduly executed by each Loan Party thereto, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to together with (i) subject to the Intercreditor Agreement, certificates, if any, representing the Collateral constituting certificated equity securities of any US domestic subsidiary of the Borrowers referred to therein accompanied by undated stock powers executed in blank; and (ii) below and, in proper financing statements (Form UCC-1 or the case equivalent) for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary to perfect the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part security interests purported to be performed or satisfied at or prior created by the Borrowers pursuant to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)terms hereof.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Loan and Security Agreement (NAKED BRAND GROUP LTD)
Conditions. 4.1 The obligations agreements of the parties under Lender contained in Clause 3.1 of this Purchase Agreement are shall all be expressly subject to the condition that the Lender shall have received in form and substance satisfactory to the Lender and its legal advisers the following conditionsdocuments or evidence:
(a) The representations and warranties contained herein shall be accurate as of on the date of delivery this Agreement:
(i) a certificate of the Preferred Securities.Secretary of each Borrower, the Guarantor and the Collateral Owner confirming the names and offices of all the Directors of that Borrower, the Guarantor and the Collateral Owner together with its incorporation and constitutional documents;
(bii) [Reserved].true and complete copies of the resolutions passed at meetings of the Board of Directors and Shareholders of each Borrower, the Guarantor and the Collateral Owner authorising and approving the execution of this Agreement, the New Finance Documents and any other document or action to which it is or is to be a party and authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(ciii) ▇▇▇▇▇▇the original of any power of attorney issued by each Borrower, ▇▇▇the Guarantor and the Collateral Owner pursuant to the resolutions referred to in Clause 4.1(a) (ii);
(iv) certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this Agreement and the New Finance Documents including without limitation, all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Lender reasonably deems appropriate;
(v) an original of this Agreement, duly executed by all parties;
(vi) a duly executed original of each Confirmation;
(vii) duly executed originals of the Guarantee, the Collateral Owner Guarantee and the Approved Manager’s Undertakings;
(viii) a certified true copy of each management agreement made between each Approved Manager and the Borrowers together with a certificate of incumbency for each Approved Manager or other document acceptable to the Lender, acting reasonably, evidencing the directors and/or officers of each Approved Manager ;
(ix) evidence that the Collateral Mortgage has been duly registered against the Collateral Ship as a valid second priority statutory Maltese ship mortgage in accordance with the laws of Malta;
(x) a duly executed original of the Collateral Deed of Covenant, a duly executed original of the Collateral General Assignment and all other documents to be executed and served (in respect of notices) pursuant to the Collateral Deed of Covenant and the Collateral General Assignment;
(xi) any additional or new notices, reflecting the arrangements contemplated by this Agreement, required to be given under the relevant Collateral Deed of Covenant and the Collateral General Assignment, have been given in the manner therein provided;
(xii) the arrangement fee referred to in Clause 7.1;
(xiii) a certified true copy of the DOC in respect of the Collateral Ship;
(xiv) certified true copies of the SMC and the International Ship Security Certificate under the ISPS Code in respect of the Collateral Ship;
(xv) a certified true copy of a class maintenance certificate issued by the classification society, confirming her class free of all overdue recommendations and conditions;
(xvi) evidence that the agent referred to in Clause 9.4 has accepted its appointment as agent for service of process under this Agreement and the New Finance Documents; and
(xvii) such legal opinions from lawyers appointed by the Lender on such matters concerning the laws of Malta, the M▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for Islands and such other relevant jurisdictions as the Sellers Lender may require.
(b) on the “Company Counsel”), shall have delivered an opinion, dated the Closing Effective Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance evidence satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion Lender that each Borrower is a direct and fully owned subsidiary of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)Guarantor.
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations Incremental Commitments shall become effective as of the parties under this Purchase Agreement are subject to the following conditionsIncrease Effective Date; provided that:
(ai) The each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(iii) the representations and warranties contained herein shall be accurate in Article V and the other Loan Documents are true and correct in all material respects on and as of the date Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of delivery such earlier date, and except that for purposes of this Section 2.18(a), the representations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to refer to the most recent financial statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01; provided that, in the case of an Incremental Commitment being used to consummate a Limited Condition Acquisition, at the Borrowers’ election, to the extent acceptable to the Lenders providing the relevant Incremental Commitments, the only representations and warranties that will be required to be true and correct will be the customary specified representations as agreed to by such Lenders and such of the Preferred Securitiesrepresentation, made by or on behalf of the applicable Target in the acquisition agreement governing such Limited Condition Acquisition as are material to the interest of the Lenders, but only to the extent that a Loan Party has the right to terminate its obligations under such acquisition agreement or to decline to consummate such Limited Condition Acquisition as a result of a breach of such representation in the acquisition agreement.
(biv) [Reserved].if required by the Lenders, the Borrowers shall make any breakage payments in connection with any adjustment of Revolving Loans pursuant to Section 3.05;
(cv) ▇▇▇▇▇▇to the extent reasonably requested by the Administrative Agent, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), Administrative Agent shall have received customary legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements substantially consistent with those delivered an opinion, dated on the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance Date under Section 4.01 or otherwise reasonably satisfactory to the PurchaserAdministrative Agent; and
(iivi) (A) upon the Company reasonable request of any Incremental Lender (as defined below) made at least three (3) days prior to the Increase Effective Date, the Borrowers shall have furnished provided to the Purchaser the opinion of the Company’s General Counsel in form such Lender, and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor such Lender shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinionbe reasonably satisfied with, the Company Counsel may rely as to factual matters upon certificates or documentation and other documents furnished by officers, directors information so requested in connection with applicable “know your customer” and trustees of the Company, the Guarantor anti-money-laundering rules and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsregulations, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the TrustPATRIOT Act, in each case dated the Closing Date, and, in the case of the Company, as to at least three (i3) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or days prior to the Closing Increase Effective Date and (B) at least ten (10) days prior to the Increase Effective Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken any Loan Party that qualifies as a whole, whether or not arising from transactions occurring in “legal entity customer” under the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust Beneficial Ownership Regulation shall have furnished delivered, to the Purchaser and its counsel each Lender that so requests, a Beneficial Ownership Certification in relation to such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityLoan Party.
Appears in 1 contract
Conditions. The obligations This Amendment shall be effective as of the parties under this Purchase Agreement are subject to Amendment Effective Date, provided the following conditionsconditions precedent are satisfied:
(a) The representations and warranties contained herein Administrative Agent’s receipt of the following, each of which shall be accurate as originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed, each dated the Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the date of delivery of the Preferred Securities.Amendment) and each in form and substance satisfactory to Administrative Agent and its legal counsel:
(bi) [Reserved].executed counterparts of this Amendment and all other documents and instruments requested by Administrative Agent, sufficient in number for distribution to each Lender and Borrower;
(cii) ▇▇▇▇▇▇, ▇▇▇▇a corporate certificate with resolutions in the form required by Administrative Agent;
(iii) a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers Borrower, substantially in the form of Annex 1 attached to this Amendment, covering such matters relating to the Borrower and the Subsidiaries and this Amendment as the Administrative Agent shall request, and the Borrower hereby requests such counsel to deliver such opinion;
(iv) such other certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as Lender may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as an Authorized Officer in connection with this Amendment and the other Loan Documents to which such Credit Party is a party; and
(v) fully executed originals of the Ratification of and Amendment to Security Agreement and Release and Ratification of and Amendment to Subsidiary Guaranty, in the forms set forth on Schedules “1-A” and “1-B”, respectively, attached hereto, for each party thereto (collectively the “Company CounselRatifications”);
(b) Administrative Agent’s receipt of such other assurances, certificates, documents, consents, and opinions as Administrative Agent reasonably may require;
(c) Borrower shall have delivered an opinionpaid to Administrative Agent, dated the Closing Date, addressed for payment to the Purchaser and JPMorgan Chase BankLenders, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts loan fees in the law amount of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified byfive (5) basis points times the amount of each Lender’s Commitment, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord for a total of the ABA Section of Business Law (1991).$37,500.00; and
(d) The Purchaser unless waived by Administrative Agent, Borrower shall have been furnished the opinion paid all fees, expenses and disbursements of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax any law firm or other external counsel for the Purchaser, dated the Closing Date, addressed Administrative Agent to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or extent invoiced prior to the Closing Date; and
date hereof, plus such additional amounts of such fees, expenses and disbursements as shall constitute its reasonable estimate thereof incurred or to be incurred by it through the closing proceedings as to this Amendment (ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets provided that such estimate shall not thereafter preclude a final settling of the Company accounts between Borrower and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”Administrative Agent).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Credit Agreement (Matrix Service Co)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are First Amendment is subject to the satisfaction of the following conditions:conditions precedent (other than the condition set forth in paragraph (h) below (which may be satisfied after the date hereof)):
(a) The representations and warranties contained herein the Lender shall be accurate as have received a counterpart of the date of delivery of the Preferred Securities.this First Amendment duly executed by all signatories hereto;
(b) [Reserved].the Borrower shall have paid to the Lender an upfront fee equal to 0.50% of the Revolving Commitment, as increased by this First Amendment, such fee to be non-refundable and fully earned upon receipt;
(c) ▇▇▇▇▇▇, ▇▇▇the Lender shall have received a written opinion of T▇▇▇▇▇▇▇ & ▇▇▇S▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, LLP addressed to the Purchaser Lender and JPMorgan Chase Bank, National Association, covering substantially all of the matters set forth in the opinion rendered on the Closing Date of the Credit Agreement but as they relate to this First Amendment and otherwise in form and substance satisfactory to the Purchaser; Lender;
(iid) the Company Lender shall have furnished to the Purchaser the opinion received a certificate of the Company’s General Counsel Secretary or Assistant Secretary of the Borrower, attaching and certifying resolutions of its board of directors authorizing the execution, delivery and performance of this First Amendment and certifying the name, title and true signature of each officer of the Borrower executing the Loan Documents and otherwise in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.Lender;
(e) The Purchaser the Lender shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, a certificate dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee date hereof and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive a Responsible Officer, President certifying that (w) no Default or a Vice PresidentEvent of Default exists, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (ix) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the all representations and warranties of the Borrower set forth in this Purchase Agreement are the Loan Documents remain true and correct on and as of the Closing Date date hereof (except to the extent such representations and warranties relate to an earlier date (in which case such representations and warranties shall be true and correct as of such earlier date), (y) since June 30, 2015, there shall have been no change, event or other circumstance which has had or could reasonably be expected to have a Material Adverse Effect and (z) no consents, approvals, authorizations, registrations, filings or orders of the type described in section 5(f) below are required to be made or obtained in connection with the same effect as if execution, delivery, performance, validity and enforceability of the Loan Documents or any transaction contemplated thereby, other than those that have been obtained;
(f) the Lender shall have received certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made on or obtained under any applicable laws, or by any contractual obligation of the Closing DateBorrower, in connection with the execution, delivery, performance, validity and enforceability of this First Amendment or any of the transactions contemplated hereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any Governmental Authority regarding the Company and Revolving Loans or any transactions being financed with the Trustproceeds thereof shall be ongoing;
(g) the Lender shall have received a duly executed Revolving Credit Note payable to the Lender in a face amount equal to the Revolving Commitment, as applicableincreased hereby;
(h) the Lender shall have received the results of a recent UCC, tax, judgment and lien searches in respect of the Borrower, and such searches shall reveal no Liens of record other than Liens permitted pursuant to Section 7.2 of the Credit Agreement;
(i) the Borrower shall have complied with paid all the agreements fees and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Dateexpenses contemplated by Section 8 hereof; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust Lender shall have furnished to the Purchaser received such other documents, instruments and its counsel such further information, certificates and documents agreements as the Purchaser or its counsel Lender may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance request relating to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityherein.
Appears in 1 contract
Conditions. The obligations This Agreement shall become effective as of the parties under this Purchase Agreement are subject to first date (the “2017 Incremental Effective Date”) when each of the following conditionsconditions shall have been satisfied:
(a) The the Administrative Agent (or its counsel) shall have received from each Loan Party, the 2017 Incremental Term Lender and the Administrative Agent (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(b) the Administrative Agent shall have received any required notice of borrowing of the 2017 Incremental Term Loans pursuant to Section 2.03 of the Credit Agreement; provided that such notice of borrowing shall be delivered in accordance the time periods specified in Section 2.03 of the Credit Agreement or such shorter period as the Administrative Agent may agree;
(c) the representations and warranties contained herein set forth in Section 3 above shall be accurate true and correct as of the date of delivery hereof;
(d) the Administrative Agent shall have received a certificate, dated the 2017 Incremental Effective Date and executed by a Responsible Officer of the Preferred Securities.Borrower, confirming the accuracy of the representations and warranties set forth in Section 3 above;
(be) [Reserved].
(c) ▇▇▇▇▇▇the Administrative Agent shall have received, ▇▇▇▇on behalf of itself and the 2017 Incremental Term Lender, a favorable written opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, as New York, California, Delaware and Illinois special counsel for the Sellers Loan Parties (i) dated the “Company Counsel”date hereof, (ii) addressed to the Administrative Agent and the 2017 Incremental Term Lender and (iii) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to this Agreement as the Administrative Agent shall reasonably request (it being understood and agreed that such opinion shall be with respect to the Borrower and each other Loan Party organized under the laws of the states of New York, California, Delaware and Illinois only), ;
(f) the Administrative Agent shall have received customary closing certificates consistent with those delivered an opinionon the Closing Date; provided that, dated in lieu of attaching organizational documents and/or evidence of incumbency of the officers of any Loan Party to such certificates, such certificates may certify that (i) since the Closing Date, addressed there have been no changes to the Purchaser organizational documents of such Loan Party and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall no changes have furnished been made to the Purchaser the opinion incumbency certificate of the Company’s General Counsel officers of such Loan Party delivered on the Closing Date or such later date referred to in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).certificates;
(dg) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser Administrative Agent shall have received satisfactory evidence of the opinion payment of the ▇▇▇▇▇▇▇ Notes Repayment Amount by the Borrower to U.S. Bank National Association, as trustee under the ▇▇, ▇▇▇▇▇▇ & FingerExisting Notes, P.A.which shall occur substantially simultaneously with the Borrowing of the 2017 Incremental Term Loans, special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser Borrower shall have received the opinion of Gardere designate ▇▇▇▇▇▇▇ ▇▇▇▇▇ as a Subsidiary under the Credit Agreement; and
(h) any fees and reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for LLP) owing by the Delaware Trustee, dated the Closing Date, addressed Borrower to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, Administrative Agent and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) 2017 Incremental Arrangers and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or invoiced prior to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there date hereof shall not have been paid in full (subject to any change, or agreed-upon limits contained in any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed letter agreement with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser Administrative Agent or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, affiliates or if any of the opinions, certificates and documents mentioned above such 2017 Incremental Arrangers or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel their respective affiliates entered into in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitythis Agreement).
Appears in 1 contract
Sources: Incremental Assumption Agreement (CAESARS ENTERTAINMENT Corp)
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved.].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇L▇▇▇▇ Liddell & ▇▇▇▇▇▇S▇▇▇ LLP, counsel for the Sellers Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex A-I hereto and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory or a certificate signed by the Company’s Chief Executive Officer, President, an Executive Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to in substantially the Guarantor shall have delivered an opinion form set out in form and substance satisfactory to the PurchaserAnnex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. If the Company Counsel is not admitted to practice in the State of New York, the opinion of the Company Counsel may assume, for purposes of the opinion, that the laws of the State of New York are substantively identical, in all respects material to the opinion, to the internal laws of the state in which such counsel is admitted to practice. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser and Sellers shall have been furnished the opinion of Mayer, Brown, ▇R▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser Purchaser, the Sellers and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, a national banking association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇W▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, Trust have complied with all the agreements and satisfied all the conditions on its either of their part to be performed or satisfied at or prior to the Closing Date; and
(ii) since October 31, 2004 the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a wholesubsidiaries, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor Company and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor Trust and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations (i) As a condition precedent to each Incremental Increase, the Borrower shall deliver to the Administrative Agent a certificate of the parties Borrower and, if reasonably determined by the Administrative Agent to be necessary or desirable under this Purchase Agreement are subject applicable Requirements of Law with respect to the following conditions:
Loan Documents of a Guarantor, of each such Guarantor, dated as of the Increase Effective Date, signed by a Responsible Officer of the Borrower or each such Guarantor, as applicable, and (aA) The certifying and attaching the resolutions adopted by the Borrower or such Guarantor approving or consenting to such Incremental Increase (which, with respect to any such Loan Party, may, if applicable, be the resolutions entered into by such Loan Party in connection with the incurrence of the Obligations on the Closing Date) and (B) certifying that (1) both before and immediately after giving effect to such Incremental Increase, as of the Increase Effective Date, no Event of Default shall exist and be continuing, (2) immediately after giving effect to such Incremental Increase, as of the Increase Effective Date, the Borrower shall be in pro forma compliance (after giving effect to the incurrence of such Incremental Increase and the use of proceeds thereof) with each of the financial covenants contained in Section 7.14 and (3) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, with respect to representations or warranties modified by a materiality or Material Adverse Effect standard, each such representation or warranty shall be true and correct in all respects) as of such earlier date, and except that for purposes of this clause (i)(B)(3), the representations and warranties contained herein in Sections 5.04(a) and (b) shall be accurate deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively. In addition, as a condition precedent to each Incremental Increase, the Borrower shall deliver or cause to be delivered such other officer’s certificates, organizational documents and legal opinions of the date of delivery of type delivered on the Preferred SecuritiesClosing Date as are reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent.
(bii) [Reserved].
Each Revolving Credit Increase shall have substantially the same terms as the outstanding Revolving Credit Loans and be part of the existing Revolving Credit Facility hereunder. Upon each Revolving Credit Increase (cx) each Revolving Credit Lender having a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Credit Lender providing a portion of the Revolving Credit Increase (each, a “Revolving Credit Increase Lender”) in respect of such increase, and each such Revolving Credit Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPafter giving effect to each such deemed assignment and assumption of participations, counsel for the Sellers percentage of the aggregate outstanding participations hereunder in (1) Letters of Credit and (2) Swing Line Loans, will, in each case, equal each Revolving Credit Lender’s Applicable Revolving Credit Percentages (after giving effect to such increase in the “Company Counsel”)Revolving Credit Facility) and (y) if, on the date of such increase there are any Revolving Credit Loans outstanding, the Revolving Credit Lenders shall have delivered an opinion, dated make such payments among themselves as the Closing Date, addressed Administrative Agent may reasonably request to the Purchaser extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising from such Revolving Credit Increase, and JPMorgan Chase Bank, National Association, in form and substance satisfactory the Borrower shall pay to the Purchaser; (ii) applicable Lenders any amounts required to be paid pursuant to Section 3.05 in connection with such payments among the Company shall have furnished to the Purchaser the opinion Revolving Credit Lenders as if such payments were effected by prepayments of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and Revolving Credit Loans.
(iii) Irvine Law GroupTo the extent that any Incremental Increase shall take the form of a Term Loan Increase or an Incremental Term Loan, P.C., special tax counsel this Agreement may be amended to the Guarantor shall have delivered an opinion in form and substance satisfactory extent necessary (without the need to obtain the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies consent of any Lender or any L/C Issuer other than the Lenders providing such certificates Incremental Term Loans or documents Term Loan Increase), including with respect to such terms as are delivered to the Purchaser) customary for a term loan commitment, including mandatory prepayments, assignments and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and voting provisions; provided that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) if any such terms (when taken as a whole) are materially more restrictive to the Borrower and its Restricted Subsidiaries then such material terms shall be added to the Term Facility hereunder, provided that if such terms have been amended, modified or removed by the requisite Lenders providing such Incremental Term Loans, such terms shall be automatically deemed amended, modified or removed in respect of each other Term Facility hereunder (or tranche thereof) without any further action by or consent of any Person and (ii) below andno such terms or amendment shall contravene any of the terms of the then existing Loan Documents. On any Increase Effective Date on which any Incremental Increase in the form of a Term Loan Increase or an Incremental Term Loan is effective, subject to the satisfaction of the terms and conditions in this Section 2.14, each Lender of such new Term Loan Increase or an Incremental Term Loan shall make an amount equal to its commitment to such new Term Loan Increase or an Incremental Term Loan available to the Borrower, in the case of the Trust, as to (i) belowa manner consistent with Borrowings hereunder.
(iiv) Notwithstanding anything to the representations and warranties contrary contained in this Purchase Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Datesubsection 2.14(d), and the Company and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in extent agreed to by the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of businessapplicable Lenders providing an Incremental Increase, the effect of which is, in the Purchaser’s judgment, so material and adverse as only conditions precedent to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel Incremental Increase incurred in connection with the Operative Documents and the transactions contemplated hereby and thereby a Limited Conditionality Transaction shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer those set forth in any individual capacitySection 1.09.
Appears in 1 contract
Conditions. The Bank’s obligations of to extend credit under the parties under this Purchase Agreement Loan are subject to the following conditions:
(a) There shall be no Event of Default or condition or event which, after notice or lapse of time or both, would constitute such an Event of Default;
(b) The Bank shall have received from counsel to the Borrower favorable opinions as to all matters reasonably requested by the Bank, in form and substance mutually agreeable to the Borrower and the Bank;
(c) The Borrower shall deliver to the Bank duly executed Loan Documents and all other documents or instruments which the Bank shall require in connection with extension of credit under the Loan;
(d) The Borrower shall have received and shall have provided to the Bank evidence of all necessary approvals of federal and state regulatory agencies if required regarding the Loan and the payment of dividends by the Bank Subsidiaries to the Borrower to make all payments under the Loan;
(e) The Borrower shall use the entire loan amount to fund the cash portion of the purchase price to be paid in the merger of The Peoples BancTrust Company, Inc. into the Borrower pursuant to the Agreement and Plan of Merger between the Borrower and The Peoples BancTrust Company, Inc. dated May 21, 2007, and any expenses associated with the Loan;
(f) The Borrower shall continue to fulfill all of the terms, representations, warranties, and covenants of the Loan Documents;
(g) Neither the Borrower nor any Bank Subsidiary shall be subject to any regulatory formal enforcement action;
(h) The Bank shall have conducted an on-site investigation and review of the Borrower and shall have been satisfied in its sole discretion with its findings and of the condition of the Borrower;
(i) The Bank shall have received a certificate of the president, a vice president, or other officer(s) of the Borrower, in form and substance mutually agreeable to the Borrower and the Bank, stating (i) that all representations and warranties contained herein shall be in this Agreement and in all other Loan Documents are true and accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the PurchaserClosing; (ii) that there exists no Event of Default under this Agreement or under any other Loan Document, or any condition or event which with the Company shall have furnished to giving of notice or the Purchaser the opinion passage of the Company’s General Counsel in form and substance satisfactory to the Purchasertime, or both, would become an Event of Default under this Agreement or under any other Loan Document; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed fact or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed representation reasonably requested by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, Bank in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datesole discretion; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company The Borrower and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation each Bank Subsidiary shall be given to the Companyin material compliance with all laws, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trustregulations, the Guarantor and/or the Companyorders, as the case may bememoranda, and not by such trustee or officer in any individual capacityrequirements applicable to them.
Appears in 1 contract
Conditions. The This Amendment (including the amendments set forth in ARTICLE I) and the obligations of the parties under 2024-A Replacement Term Lenders to make 2024-A Replacement Term Loans shall become effective when all of the conditions set forth in this Purchase ARTICLE IV shall have been satisfied or waived in accordance with Section 16.01 of the Existing Credit Agreement (the date such conditions are subject to satisfied or waived, the following conditions:“Amendment Date”):
(a) The representations Agent (or its counsel) shall have received (i) from each 2024-A Replacement Term Loan Exchange Lender, each 2024-A Post-Closing Option Lender and warranties contained herein shall be accurate as each 2024-A Additional Replacement Term Lender, (ii) from Lenders that constitute Majority Lenders and (ii) from each of the date Loan Parties, either (x) a counterpart of this Amendment signed on behalf of such party (or a 2024-A Replacement Term Loan Consent) or (y) written evidence reasonably satisfactory to the Agent (which may include delivery of the Preferred Securitiesa signed signature page of this Amendment by facsimile or other means of electronic transmission (e.g., “pdf”) that such party has signed a counterpart of this Amendment (or a 2024-A Replacement Term Loan Consent).
(b) [Reserved]The Agent shall have received from the Loan Parties a certified copy of (i) the charter documents and by-laws (or equivalent governing documents) of each Loan Party organized in Canada, the United States of America or the United Kingdom (each, an “Applicable Loan Party”); (ii) the resolutions of the board of directors (or any duly authorized committee or other governing body thereof) or of the shareholders, as the case may be, of each Applicable Loan Party approving the repricing of the Term Loans and other matters provided for in this Amendment and approving the entering into of all other related Credit Documents to which they are a party and the completion of all transactions contemplated thereunder; (iii) all other instruments evidencing necessary corporate, company or partnership action of each Applicable Loan Party and of any required Authorization with respect to such matters; and (iv) certifying the names and true signatures of its officers authorized to sign this Amendment and the other Credit Documents manually or by mechanical means; provided that, a certificate from each such Applicable Loan Party certifying that there have been no changes to any of the foregoing items or matters since the date of the last certified copies thereof delivered by such Applicable Loan Party in connection with the Existing Credit Agreement shall be deemed to satisfy the condition in this Section 4.01(b).
(c) The Agent shall have received a certificate of status, compliance, good standing or like certificate with respect to each Applicable Loan Party issued by the appropriate government official in the jurisdiction of its incorporation or organization.
(d) Each of the representations and warranties contained in ARTICLE III above shall be true and correct.
(e) The Agent shall have received a certificate, dated as of the Amendment Date and signed by a Responsible Officer of the Borrower, confirming the accuracy of the representations and warranties set forth in ARTICLE III.
(f) The Agent shall have received, to the extent invoiced at least three Business Days prior to the Amendment Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (but excluding any fees, charges and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Credit Document on or prior to the Amendment Date (which amounts may be offset against the proceeds of the Term Loans made hereunder).
(g) The Borrower shall have paid to the Agent, for the ratable account of the Existing Term Lenders immediately prior to Amendment Date, simultaneously with the making of the 2024-A Replacement Term Loans, all accrued and unpaid interest on their respective Existing Term Loans to, but not including, the Amendment Effective Date.
(h) the Administrative Agent shall have received reasonably satisfactory opinions of (i) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇ LLP, special Delaware counsel to the Loan Parties, (ii) Osler, ▇▇▇▇▇▇ & Harcourt LLP, special Ontario counsel to the Loan Parties, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special Nova Scotia counsel to the Loan Parties, and (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special New York and United Kingdom counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the TrustLoan Parties, in each case dated as is relevant to confirm, inter alia, corporate existence, due authorization, non-contravention of other Debt of any Loan Party or any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) which is outstanding in an aggregate principal amount exceeding $125,000,000, execution by the Closing Date, and, in the case Applicable Loan Parties and enforceability of the CompanyAmendment, as to (i) and (ii) below and, in the case validity and perfection of the Trust, as Encumbrances created under the applicable Credit Documents after giving effect to (i) belowthis Amendment.
(i) the representations and warranties in this Purchase Agreement are true and correct on and The Administrative Agent shall have received a certificate, dated as of the Closing Amendment Date with the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior signed by a Financial Officer of Open Text attesting to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets Solvency of the Company Open Text and its subsidiaries Subsidiaries, taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust The Agent shall have furnished to received an Accommodation Notice for the Purchaser and its counsel such further information, certificates and documents as Accommodation occurring on the Purchaser or its counsel may reasonably request. If any Amendment Effective Date in accordance with the delivery requirements under Section 3.02 of the conditions specified in this Section 3 shall not have been fulfilled when and Existing Credit Agreement (or such later time as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date agreed by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust Agent in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityits discretion).
Appears in 1 contract
Sources: Credit Agreement (Open Text Corp)
Conditions. The obligations consent contained in clause (ii) of Section 1.01 is further conditioned upon the parties under this Purchase Agreement are subject to the following conditionsfollowing:
(a) The On the Closing Date (as defined in the APA) of the Asset Purchase (i) the representations and warranties contained herein in the Loan Agreement shall be accurate true and correct in all material respects as of the date of delivery thereof as if made on the date thereof, except for those representations and warranties that are limited by their terms to a specific date (such representations and warranties being true and correct in all material respects as of the Preferred Securitiesspecified date relative thereto) and (ii) no Default or Event of Default shall have occurred and be continuing.
(b) [Reserved]The Asset Purchase is consummated pursuant to the terms and conditions of the APA without giving effect to any waivers, amendments, supplements or other modifications thereto unless such waivers, amendments, supplements or other modifications are approved by the Agent in writing.
(c) ▇▇▇▇▇▇The Asset Purchase and the Transaction are consummated in accordance with all applicable laws, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPrules or regulations and all requisite approvals and consents (regulatory, counsel governmental or otherwise) have been obtained.
(d) The receipt by Agent of a certified true copy of the fully executed APA (within 15 Business Days after the execution thereof), together with final, execution copies of the other documents, instruments and agreements executed in connection therewith or executed or to be executed in connection with the Transaction, in each case, in form and substance reasonably satisfactory to Agent and such other documents, instruments, agreements and opinions as the Agent shall reasonably request.
(e) Each of the “Conditions to Obligations of Purchaser” set forth in Article VII of the APA shall have been met or satisfied to the satisfaction of the Agent in all material respects without any waivers (or deemed waivers), amendments, supplements or modifications thereof that are not acceptable to the Agent (for the Sellers avoidance of doubt, all documents, instruments, agreements, consents, approvals, and releases required under such conditions shall be in form and substance satisfactory to Agent).
(f) Not less than 5 Business Days prior to the “Closing Date of the Asset Purchase, the Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser Agent, the certificate required by clause (f) of the definition of Permitted Acquisitions, certifying and JPMorgan Chase Bankconfirming that the Asset Purchase constitutes a Permitted Acquisition.
(g) Prior to the closing of the Asset Purchase, National Associationthe Company shall furnish to the Agent such other material documentation and information relating to the Transaction, as reasonably requested by the Agent.
(h) Receipt by the Agent of (i) such other documentation and information, other agreements, instruments, certificates and due diligence materials as the Agent may reasonably request, which shall be in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) Agent and (ii) below and, in the case a certificate of a Senior Officer of the TrustCompany (x) certifying to the Administrative Agent that all conditions set forth in this Consent have been satisfied in all material respects and (y) attaching thereto (except to the extent waived by Agent) and attesting to the completeness of fully executed copies of the Transaction documents; all licenses and permits to be obtained from governmental and regulatory authorities necessary to operate the Business; all third party consents, approvals and assignments necessary to operate the Business, all necessary lien releases and payoff letters, each executed by MCH as required, each other party to (i) belowsuch document, MRMC and/or the Company, together with all schedules and exhibits thereto, all closing deliverables made pursuant thereto, and all filings to be made in connection therewith.
(i) the representations and warranties in this Purchase Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, MRMC and the Company having taken such other action and delivered such other documents to create, perfect or protect the TrustAgents’ Liens in the acquired assets as Agent may reasonably require, as applicableincluding new or amended Blocked Account Agreements and, have complied if requested by Agent, Lien Waivers with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior respect to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent real property subject to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting Lease from the condition (financial or other), earnings, business or assets of the Guarantor lessor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiesmortgagees thereof.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. 3.1 The respective obligations of each of the parties under this Purchase Agreement are Purchaser and the Seller to consummate the Transaction shall be subject to the satisfaction of the following conditions any of which may be waived in writing by both, but only both, parties:
3.1.1 No statute, rule or regulation shall have been enacted or promulgated by any Governmental Entity which prohibits, and there shall have been no order, writ or injunction of a court of competent jurisdiction in effect precluding the performance by either party of its material obligations hereunder.
3.1.2 Since the date of this Agreement, there shall not have been commenced or threatened against the Purchaser or the Seller, any Proceeding that is reasonably likely to have the effect of preventing, materially delaying, making illegal, or otherwise materially interfering with the performance by either party of any of its obligations hereunder, except for such obligations that, considered individually or in the aggregate, are not material.
3.1.3 Each of the Consents necessary for the performance by the Seller of its material obligations hereunder, other than, without prejudice to clause 10.6, Consents necessary in order to assign and novate the Contracts shall have been obtained and shall be in full force and effect.
3.1.4 Each of the Consents necessary for the performance by the Purchaser of its material obligations hereunder, other than, without prejudice to clause 10.6, Consents necessary in order to assign and novate the Contracts shall have been obtained and shall be in full force and effect.
3.1.5 The Seller shall have transferred or assigned to the Purchaser all of Seller's right, title and interest in and to the Contracts, and novated to the Purchaser the obligations and liabilities under and associated with the Contracts; and the Purchaser shall have assumed, become liable for and agreed to perform the Contracts.
3.1.6 The parties shall have executed and delivered to each other an agreement with regard to the transfer of Employees to the Purchaser incorporating the provisions of clause 12.1.
3.2 The obligation of the Purchaser to consummate the Transaction shall be subject to the satisfaction of the following conditions, any of which may be waived in writing by the Purchaser:
(a) 3.2.1 Each of the necessary approvals of the Boards of Directors and Commissioners of Seller shall have been obtained and remain in full force and effect.
3.2.2 There must not have been made or threatened by any third party any material claim asserting the Seller is not the legal owner of substantially all of the Purchased Assets save and except for such claims as the Purchaser has Knowledge, or has reason to believe, to be frivolous or made without basis.
3.2.3 The Seller shall have delivered to the Purchaser the documents required by clause 5.2.
3.2.4 All of the representations and warranties contained herein of the Seller set forth in this Agreement or in any certificate delivered in connection herewith that are qualified as to materiality shall be accurate have been true and correct in all respects and each such representation that is not so qualified (considered individually), and all such representations and warranties that are not so qualified (considered collectively) shall have been true and correct in all material respects, (i) in the case of the representations and warranties in Part A and Part B of Schedule 1, as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) this Agreement and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Agreement are true and correct if made on and as of the Closing Date with (without recognising as valid disclosures in the same effect as if case of the representations and warranties in Part A and Part B of Schedule 1, those disclosures made on the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed in any supplement or satisfied at or prior amendment to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change Signing Disclosure Schedule in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring form in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to which it was delivered simultaneously with the execution of this Purchase Agreement).
3.3 The obligation of the Seller to consummate the Transaction shall be subject to the satisfaction of the following conditions, there any of which, may be waived in writing by the Seller:
3.3.1 Each of the necessary approvals of the Boards of Directors and Commissioners and the General Meeting of Shareholders of Purchaser shall not have been obtained and remain in full force and effect.
3.3.2 The Purchaser shall have delivered to the Seller the documents required by clause 5.3.
3.3.3 All of the representations and warranties of the Purchaser set forth in this Agreement or in any changecertificate delivered in connection herewith that are qualified as to materiality shall have been true and correct in all respects, or any development involving a prospective changeand each such representation that is not so qualified (considered individually), and all such representations and warranties that are not so qualified (considered collectively), shall have been true and correct in all material respects, in or affecting the condition (financial or other), earnings, business or assets each case as of the Guarantor date of this Agreement and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date.
3.3.4 If considered appropriate by the Seller, the Company approval by the General Meeting of the Shareholders of Seller of the consummation of the Transaction by Seller has been obtained and remains in full force and effect.
3.4 If, at any time, the Trust shall have furnished to Seller or the Purchaser becomes aware of facts or circumstances which it determines, in its sole and its counsel such further informationabsolute discretion, certificates and documents as could have a material adverse effect on the Purchaser or its counsel may reasonably request. If any consummation of the conditions specified in this Section 3 Transaction, it shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of promptly notify the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed other party in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
(a) The Underwriters’ obligations hereunder shall be subject to the accuracy of the representations and warranties of the Corporation contained herein shall be accurate in this Agreement as of the date of delivery this Agreement and as of the Preferred Securities.Closing Date, the performance by the Corporation of its obligations under this Agreement, and the Underwriters receiving the following at the Closing Time:
(bi) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, a certificate or certificates dated as of the Closing Date, addressed to the Purchaser Underwriters and JPMorgan Chase Banksigned by each of the Chief Executive Officer and Chief Financial Officer of the Corporation or such other officers of the Corporation acceptable to the Underwriters, National Associationwith respect to the articles of incorporation or other constating documents and by-laws of the Corporation, the resolutions of the board of directors of the Corporation authorizing this Agreement, the Debenture Indenture and the Offering, the incumbency and specimen signatures of signing officers of the Corporation and with respect to such other matters as the Underwriters may reasonably request;
(ii) a certificate or certificates dated as of the Closing Date, addressed to the Underwriters and signed by each of the Chief Executive Officer and Chief Financial Officer of the Corporation or such other officers of the Corporation acceptable to the Underwriters, certifying for and on behalf of the Corporation and not in their personal capacity that to the best of their knowledge, information and belief:
(A) the Corporation has complied with and satisfied in all material respects all covenants, terms and conditions of this Agreement on its part to be complied with and satisfied at or prior to the Closing Time;
(B) the representations and warranties of the Corporation contained in this Agreement are true and correct in all material respects as of the Closing Time with the same force and effect as if made at and as of the Closing Time (and, with respect to the representations and warranties contemplated by subsection 5(b), as if the Prospectus was delivered to the Underwriters at the Closing Time);
(C) the responses provided by the Corporation at the due diligence sessions held in connection with the filing of the Preliminary Prospectus and the Prospectus would not be materially different at the Closing Time, as if made at such time;
(D) no event of a nature referred to in paragraph 12(a)(i), (ii), or (iii) (without regard for this purpose, to the opinion of an Underwriter as provided therein) has occurred or to the knowledge of such officer is pending, contemplated or threatened; and
(E) such other matters as the Underwriters may reasonably request;
(iii) a favourable legal opinion dated as of the Closing Date, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinionUnderwriters, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Dateacting reasonably, addressed to the Purchaser Purchasers, the Underwriters and JPMorgan Chase Bank, National Association, in substantially their counsel from counsel to the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇Corporation, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPLLP or other counsel acceptable to the Underwriters, special counsel as to certain matters governed by the laws of Canada and the Qualifying Jurisdictions;
(iv) evidence satisfactory to the Underwriters, acting reasonably, that the TSX has conditionally approved the listing of the Offered Debentures and the Common Shares issuable upon conversion or redemption or at maturity of the Offered Debentures on the TSX, subject to compliance with all requirements of the TSX;
(v) the Underwriters’ Fee payable at the Closing Time as set forth in Section 2;
(vi) evidence satisfactory to the Underwriters, acting reasonably, that the Corporation has obtained a Final Passport System Decision Document for the Property Trustee Prospectus;
(vii) a comfort letter from the Auditors dated the Closing Date and addressed to the Indenture TrusteeUnderwriters, dated in form and substance satisfactory to the Underwriters, bringing the information contained in the comfort letters referred to in paragraph 4(d)(xiv) hereof forward to the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser provided that such comfort letter shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser be based on a certificate of the Company, signed review by the Chief Executive Officer, President or Auditors having a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or cut-off date not more than two Business Days prior to the Closing Date; and
(iiviii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets a fully executed copy of the Company Supplemental Indenture.
(b) The Corporation agrees with the Underwriters to use its best efforts to procure satisfaction of the conditions contained in this Section 10 by the times and its subsidiaries taken dates stated herein. Any condition may be waived, in whole or in part, and the time of satisfaction of any condition may be extended, by the Underwriters (acting in their absolute discretion and without any obligation to make any such waiver or extension) by written notice to the Corporation.
(c) If any condition is not satisfied in all respects or waived by the Underwriters or becomes incapable of being satisfied (and is not so waived) by the Closing Time or such later time as a wholethe Underwriters may agree, whether then the obligations of the Corporation and the Underwriters, as applicable, under this Agreement and of the Corporation shall cease and terminate and no party shall have any claim against the others for costs, damages, compensation or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).otherwise except:
(i) Subsequent in respect of any prior breach by any party of the terms of this Agreement;
(ii) the provisions of Sections 1, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 shall remain in full force and effect; and
(iii) the Corporation shall pay to the execution of this Purchase AgreementUnderwriters the costs, there shall not have been any change, or any development involving a prospective change, charges and expenses referred to in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred SecuritiesSection 16.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations This Amendment shall become effective as of the parties under this Purchase Agreement are subject to first date (the “Amendment Effective Date”) when each of the following conditionsconditions shall have been satisfied:
(a) The representations and warranties contained herein the Administrative Agent (or its counsel) shall be accurate as have received from each party hereto (including the Required Lenders) either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the date Administrative Agent (which may include telecopy, portable document format (.pdf) or email transmission of delivery a signed signature page of the Preferred Securities.this Amendment) that such party has signed a counterpart of this Amendment;
(b) [Reserved].no Default or Event of Default shall have occurred and be continuing or shall result from any extension of credit requested to be made on the Amendment Effective Date;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), Administrative Agent shall have delivered an opinionreceived a certificate, dated the Closing Date, addressed to the Purchaser Amendment Effective Date and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion signed by a Responsible Officer of the Company’s General Counsel Parent Borrower, confirming compliance with the conditions set forth in form and substance satisfactory to the Purchaser; and clause (iiib) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice this Section 4.1 and that they are not admitted to practice in any other jurisdiction and are not experts in the law each of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties made by any Loan Party contained in this Purchase Agreement are Section 3.1 above shall be true and correct on and as of the Closing Amendment Effective Date after giving effect to the Amendment and to any extension of credit requested to be made on the Amendment Effective Date with the same effect as if though such representations and warranties had been made on and as of such date; and
(d) to the Closing extent invoiced at least one (1) Business Day prior to the Amendment Effective Date, the Administrative Agent shall have received all amounts due and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions payable to it or its Affiliates on its part to be performed or satisfied at or prior to the Closing Amendment Effective Date; and
(ii) since October 31, 2004 (as defined below)including, there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution extent invoiced, reimbursement or payment of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall Persons’ reasonable out‑of‑pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be given to the Company, the Guarantor and the Trust in writing reimbursed or by telephone or facsimile confirmed in writing. Each certificate signed paid by any trustee of the Trust Loan Party hereunder or under any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityother Loan Document.
Appears in 1 contract
Conditions. Notwithstanding anything to the contrary contained elsewhere in the Agreement, the obligation of the Lender to amend the definition of “Net Income” as set forth in subsection 5.18 of the 2001 Loan Agreement, as contemplated by this Third Amendment, shall be subject to (i) the performance by the Borrower prior to the date on which this Third Amendment is completely executed (the “Amendment Closing Date”) of all of its agreements theretofore to be performed under the Agreement, (ii) the representations and warranties herein being true, correct and complete in all respects, and (iii) to the satisfaction of the following conditions precedent. The obligations of to continue to make Advances under the parties under this Purchase Agreement are Revolving Loan and Term Loan shall remain subject to the following conditions:
(a) The representations conditions precedent in the 2001 Loan Agreement and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, receipt by the Lender of all the following in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form Lender and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Dateits counsel, and, in where appropriate, duly executed and dated the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.Amendment Closing Date:
(i) copies, certified by the representations and warranties in this Purchase Agreement are true and correct on and as Secretary of Parent, of the Closing Date with (a) resolutions duly adopted by the same effect Board of Directors of Parent authorizing the execution, delivery and performance of this Third Amendment and any other documents to be delivered pursuant hereto (the “Amendment-Related Documents”) to be executed by the Parent, (b) the Bylaws of the Parent as if made on the Closing Datecurrently in effect, and (c) the Company Charter of the Parent as currently in effect;
(ii) copies, certified by the Secretary of the Borrower, of the (a) resolutions duly adopted by the Board of Directors of Borrower authorizing the execution, delivery and the Trust, as applicable, have complied with all the agreements performance of this Third Amendment and satisfied all the conditions on its part any Amendment-Related Documents to be performed or satisfied at or prior to executed by the Closing DateBorrower, (b) the Bylaws of the Borrower as currently in effect, and (c) the Charter of the Borrower as currently in effect; and
(iiiii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Signature Authorization Certificate.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Loan Agreement (BankFinancial CORP)
Conditions. The obligations This Amendment shall be effective (the “Effective Date”) once each of the parties under following have been delivered to Agent and Lenders (provided that, if the GE Acquisition is not closed on or before August 31, 2006, this Purchase Agreement are subject Amendment shall be of no force and effect and no arrangement fee shall be due to the following conditions:Agent in connection with this Amendment):
(a) The representations this Amendment executed by Borrowers, Agent and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.Lenders;
(b) [Reserved].Guarantors’ Consent and Agreement executed by the Guarantors;
(c) ▇▇▇▇▇▇replacement Revolving Note executed by Borrowers and made payable to Bank of America, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for N.A. in the Sellers original principal amount of $42,000,000;
(the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed d) Agent’s satisfactory completion of due diligence with respect to the Purchaser Borrowers, Guarantors, and JPMorgan Chase Bankthe GE Acquisition, National Associationincluding but not limited to Agent’s review of (i) the Borrowers and Guarantors’ financial performance and forecasts, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to quality and quantity of assets being acquired in the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and GE Acquisition, (iii) Irvine Law Groupthe collateral securing the Credit Agreement, P.C., special tax counsel (iv) the definitive Asset Purchase Agreement between Parent and General Electric Company with respect to the Guarantor GE Acquisition (the “Purchase Agreement”) and any other ancillary documents executed in connection with the Purchase Agreement, and (v) any other due diligence items deemed necessary by Agent;
(e) no Material Adverse Effect shall have delivered an opinion in form and substance satisfactory occurred since April 30, 2006;
(f) all conditions precedent to the Purchaser. In rendering their opinionconsummation of the GE Acquisition as specified in the Purchase Agreement shall have been obtained, satisfied or occurred, other than the Company Counsel may rely payment of the purchase price by Parent;
(g) payment of the arrangement fee specified in that certain fee letter dated July 25, 2006, between Parent and Agent;
(h) Officer’s Certificate of Parent certifying as to factual matters upon certificates or other documents furnished by incumbency of officers, directors specimen signatures, no changes to articles of incorporation and trustees bylaws since the date of the Companycertificate delivered in connection with the Credit Agreement, and resolutions adopted by the Board of Directors authorizing this Amendment;
(i) Officer’s Certificate from each Guarantor certifying as to the incumbency of officers, specimen signatures, no changes to its constitutional documents since the date of the certificate delivered in connection with the Credit Agreement, and resolutions adopted by the Board of Directors authorizing this Amendment and the Trust and by government officials increased amount of its obligations under its respective Guaranty; and
(provided, however, that copies of any such certificates or documents are delivered to the Purchaserj) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed Agent or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel Lenders may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. (a) The obligations obligation of the parties under this Purchase Agreement Company to purchase and pay for the DM Associates Interests at the Closing and consummate the other transactions contemplated hereby are subject to the satisfaction as of the Closing of the following conditions:
(ai) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & , FCN and the Foundation contained herein shall be true and correct in all material respects at and as of the Closing as though then made and ▇▇▇▇▇▇▇▇▇, FCN and the Foundation shall have complied with all of their agreements herein set forth and ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have executed and delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory Company a certificate to the Purchaser; such effect;
(ii) the The Company shall have furnished obtained the requisite consents of the holders of its Senior Subordinated Notes due 2004 (the "Debentures") and its bank lenders to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and transactions contemplated hereby;
(iii) Irvine Law Group, P.C., special tax counsel The Company shall have obtained financing on terms and conditions acceptable to the Guarantor Company in amounts sufficient to fund the purchase price set forth in Section 1 hereof;
(iv) The Company shall have delivered an opinion in form obtained waivers from the Company's bank lenders and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees holders of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies Debentures of any such certificates defaults or documents are delivered events of default then existing or alleged to be in existence under the PurchaserCompany's bank loan agreements or the indenture pursuant to which the Debentures were issued; and
(v) There shall have been obtained all required waivers, consents and by releases of the partners of DM Associates and upon such other documents as such counsel may, New DM Management I and New DM Management II and CDA shall have acknowledged in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and writing that they are not admitted to practice it has no further interests in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)DM Associates Interests.
(db) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion obligation of ▇▇▇▇▇▇▇▇▇, FCN and the Foundation to sell the DM Associates Interests at the Closing and consummate the other transactions contemplated hereby are subject to:
(i) The representations and warranties of the Company contained herein being true and correct in all material respects at and as of the Closing as though then made and the Company having complied with all of its agreements herein set forth and a duly authorized officer of the Company shall have executed and delivered to ▇▇▇▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed a certificate to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.such effect;
(fii) The Purchaser Company shall have received the delivered a solvency opinion of Gardere to ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, at the Company's sole cost and expense, in form and substance reasonably acceptable to ▇▇▇▇▇▇▇▇▇, from Houlihan, Lokey, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed Zukin or another independent valuation firm reasonably acceptable to the Purchaser Company and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.▇▇▇▇▇▇▇▇▇;
(hiii) The Company shall have furnished obtained waivers from the Company's bank lenders and the holders of the Debentures of any defaults or events of default then existing or alleged to be in existence under the Company's bank loan agreements or the indenture pursuant to which the Debentures were issued;
(iv) The Company shall have obtained the requisite consents of the holders of its Debentures and its bank lenders to the Purchaser a certificate transactions contemplated hereby; and
(v) Their shall have been obtained all required waivers, consents and releases of the Company, signed partners of DM Associates and New DM Management I and New DM Management II.
(c) Any condition specified in this Section 3 may be waived if consented to in writing by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, Company in the case of the Companyconditions specified in Section 3(a) or by ▇▇▇▇▇▇▇▇▇, as to (i) and (ii) below and, FCN or the Foundation in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity3(b).
Appears in 1 contract
Sources: Purchase Agreement (Dairy Mart Convenience Stores Inc)
Conditions. The obligations effectiveness of the parties under amendment and restatement of the Existing Credit Agreement pursuant to Section 3 of this Purchase Agreement are shall be subject to the satisfaction (or waiver) of the following conditionsconditions precedent:
(a) The representations and warranties contained herein Agent (or its counsel) shall be accurate as have received from each of the date Borrower, the Parent, the Required Lenders under (and as defined in) the Existing Credit Agreement and any new Class D Lenders either a counterpart of delivery this Agreement signed on behalf of such party or written evidence satisfactory to the Preferred SecuritiesAgent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved]The GM Second Lien Credit Agreement (as defined in the Existing Credit Agreement) shall have been terminated, any amounts owing thereunder shall have been paid and all Liens securing obligations thereunder shall have been released (or arrangements reasonably satisfactory to the Agent shall have been made for such release), and the Agent shall have received evidence reasonably satisfactory to it regarding satisfaction of the foregoing conditions.
(c) The Borrower shall have notified GM in writing of its election to terminate the expedited payment terms pursuant to Section 1.5(g) of the GM Settlement Agreement, and the Agent shall have received evidence reasonably satisfactory to it regarding satisfaction of the foregoing condition.
(d) The Agent (or its counsel) shall have received from each Subsidiary, if any, that is a Subsidiary Loan Party as of the Restatement Effective Date, and is not already a Guarantor, a supplement to the Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person.
(e) The Agent shall have received a favorable written opinion (addressed to the Agent and the Lenders (as defined in the Amended Credit Agreement) and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ General Counsel of the Borrower, (ii) Shearman & FingerSterling LLP, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the PurchaserLoan Parties, JPMorgan Chase Bankand (iii) local counsel in Luxembourg, National AssociationBrazil and Scotland, in each case, in form and substance reasonably satisfactory to the Agent, and in each case covering such other matters relating to the Loan Parties, the Delaware Trustee Loan Documents or the Restatement Transactions as the Agent or the Required Lenders shall reasonably request. The Parent and the Company, in substantially the form set out in Annex C heretoBorrower hereby request such counsel to deliver such opinions.
(f) The Purchaser Agent shall have received such documents and certificates as the opinion Agent or its counsel may reasonably request relating to the organization, existence and good standing of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee Loan Parties and the Indenture Trustee, dated authorization of the Closing Date, addressed Restatement Transactions and any other legal matters relating to the PurchaserLoan Parties, the Loan Documents or the Restatement Transactions, all in substantially form and substance satisfactory to the form set out in Annex D heretoAgent and its counsel.
(g) The Purchaser representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects as of the Restatement Effective Date, no Default shall have occurred and be continuing as of the Restatement Effective Date and the Agent shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trusteea certificate, dated the Closing DateRestatement Effective Date and signed by the President, addressed to the Purchaser Chief Executive Officer, a Vice President or a Financial Officer of each of the Parent and JPMorgan Chase Bankthe Borrower, National Association, in substantially confirming the form set out in Annex E heretoforegoing.
(h) The Company Agent shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower under the Loan Documents, (ii) below and, in all accrued and unpaid interest under the case Existing Credit Agreement and all accrued and unpaid fees under paragraphs (a) and (b) of Section 2.11 of the TrustExisting Credit Agreement and (iii) any prepayments of principal required pursuant to Section 4(b) or Section 7(c). If any LC Disbursements are outstanding as of the Restatement Effective Date, as to (i) belowsuch LC Disbursements shall be repaid, together with any interest accrued thereon.
(i) The Collateral Requirement shall have been satisfied. The Perfection Schedule attached to the representations Collateral Agreement, as amended on the Restatement Effective Date, shall have been completed and warranties in this Purchase Agreement are true and correct on and as shall include all attachments contemplated thereby, including the results of a search of the Closing Date Uniform Commercial Code (or equivalent) filings made with the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior respect to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change Loan Parties in the condition (financial or other), earnings, business or assets jurisdictions contemplated by the Perfection Schedule and copies of the Company financing statements (or similar documents) disclosed by such search and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent evidence reasonably satisfactory to the execution Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 of this Purchase Agreement, there shall not the Amended Credit Agreement or have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiesreleased.
(j) Prior to The Lenders (as defined in the Closing Amended Credit Agreement) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. The Agent shall notify the Borrower and the Lenders (as defined in the Amended Credit Agreement) of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the Company foregoing, the amendment and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any restatement of the conditions specified in this Section 3 Existing Credit Agreement as contemplated hereby shall not have been fulfilled when and as provided in this Purchase Agreement, or if any become effective unless each of the opinionsforegoing conditions is satisfied (or waived) at or prior to 5:00 p.m., certificates and documents mentioned above New York City time, on July 15, 2011 (and, in the event such conditions are not so satisfied or elsewhere in this Purchase waived, the Existing Credit Agreement shall not be reasonably satisfactory remain in form and substance effect without giving effect to the Purchaser or its counsel, any provisions of this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityAgreement).
Appears in 1 contract
Sources: Revolving Credit Agreement (American Axle & Manufacturing Holdings Inc)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment No. 3 shall be subject to the following conditions:fulfillment by the Borrowers, in a manner satisfactory to the Administrative Agent and the Lender Parties, of all of the conditions precedent set forth in this Article IV, and the date on which all such conditions shall have been fulfilled to the satisfaction of the Administrative Agent and the Lender Parties, and this Amendment No. 3 shall have become effective, shall be herein called the "Effective Date".
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇and each other agreement, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPinstrument, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates certificate or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are writing delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in Administrative Agent or any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed Lender Party pursuant hereto or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser Credit Agreement shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Agreement are true and be correct on and as of the Closing Date with the same date hereof after giving effect to this Amendment No. 3 as if though made on and as of such date, (b) no Default or Event of Default shall have occurred and be continuing on the Closing DateEffective Date or would result from the taking effect of this Amendment No. 3, or the transactions contemplated hereby, and (c) all of the Company conditions precedent to the effectiveness of this Amendment No. 3 shall have been satisfied; and the Trust, as applicable, have complied with all execution and delivery of this Amendment No. 3 constitutes the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior Borrowers' certification to the Closing DateLender Parties and the Administrative Agent as to the truth, accuracy and completeness of the matters set forth in this Section 4.1.
4.2 The Administrative Agent shall have received copies of resolutions adopted by the Borrowers' boards of directors, certified by an authorized officer thereof authorizing the execution, delivery and performance of the Amendment No. 3 Documents, and an incumbency certificate relating to each of the Borrowers, and all documents incidental thereto shall be satisfactory to the Administrative Agent, the Lender Parties and their counsel, and each such person shall have received all such information and such counterpart originals or certified copies of documents as may have been reasonably requested.
4.3 The Borrowers shall have:
(a) paid a non-refundable amendment fee in an amount equal to $30,000.00 to the Administrative Agent, for the pro rata account of each Lender that timely executes and delivers its signature page evidencing its agreement to this Amendment;
(b) paid to Winston & Strawn, counsel to the Administrative Agent, all outstanding fees an▇ ▇▇▇▇nses incurred in connection with this Amendment No. 3 or otherwise; and
(iic) since October 31otherwise complied in all respects with the terms hereof and of any other agreement, 2004 (as defined below)document, there has been no material adverse change instrument or other writing to be delivered by any Borrower in the condition (financial or other), earnings, business or assets connection herewith.
4.4 Each of the Company parties hereto shall have executed and its subsidiaries taken as a whole, whether or not arising from transactions occurring in delivered this Amendment No. 3 to the ordinary course of business (a “Material Adverse Change”)Administrative Agent.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel 4.5 All proceedings in connection with the Operative Documents and the transactions contemplated hereby by this Amendment No. 3 and thereby all documents incidental thereto shall be deemed reasonably satisfactory to be a representation and warranty of the TrustAdministrative Agent, the Guarantor and/or the Company, as the case may beLender Parties and their respective counsel, and not by each such trustee Person shall have received all such information and such counterpart originals or officer in any individual capacitycertified copies of documents as may have been reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Mediabay Inc)
Conditions. 3.1 The obligations of the parties under to this Purchase Agreement to enter into the Nuclear Liabilities Agreements are subject to the following conditionsconditional on:
(aA) The representations and warranties contained herein shall be accurate the Creditor Restructuring Agreement becoming effective pursuant to clause 1.5 thereof by not later than 31 October 2003, or such later date as the Secretary of State may in writing agree;
(B) there having been no waiver (other than a waiver approved in writing by the Secretary of State) of any Initial Condition (as defined in the Creditor Restructuring Agreement) of the date Creditor Restructuring Agreement (other than pursuant to clause 3.3 thereof) or of delivery any Restructuring Condition and the Creditor Restructuring Agreement having been neither amended in a manner that the Secretary of the Preferred Securities.State considers to be material nor terminated;
(bC) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (Secretary of State not having determined and notified British Energy before the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National AssociationNotified Filing Date in writing that, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their her opinion, the Company Counsel may rely as Group (including for this purpose Newco 1 and Newco 2) will not be viable in all reasonably foreseeable conditions without access to factual matters upon certificates or additional financing (other documents furnished by officersthan financing which the Secretary of State is satisfied has been committed and will continue to be available when required);
(D) without prejudice to the generality of paragraph (C), directors the Secretary of State having received a copy of letters from the auditors and trustees financial advisers of Newco 1 addressed to Newco 1 giving the confirmations referred to in Rule 2.18 of the CompanyListing Rules of the UK Listing Authority without qualification (whether or not Newco 1 is to be listed on the Official List of the UK Listing Authority), provided that the Guarantor and delivery of copy letters pursuant to this paragraph (D) shall not impose duties upon, or increase the Trust and by government officials liabilities of, those advisers beyond what would otherwise be the case;
(provided, however, that copies E) there being no Event of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents Default (as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts defined in the law of any other jurisdiction. Such Company Counsel Opinion shall not state Credit Facility Agreement) that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).is continuing;
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(iF) the representations and warranties of the British Energy Parties, Newco 1 and Newco 2 set out in clause 5.1 (Representations and Warranties) being true and accurate and not misleading when given and no circumstances having arisen as a result of which any of those representations and warranties would be untrue, inaccurate or misleading if repeated as at the date when the Nuclear Liabilities Agreements would be entered into;
(G) there having been no breach of any undertaking given in this Purchase Agreement are true and correct on and as by any British Energy Party, Newco 1 or Newco 2 which, in the reasonable opinion of the Closing Date Secretary of State, is, or is likely to be, material in the context of the Restructuring;
(H) it being the case that as at the date when the other conditions set out in this clause 3.1 have been satisfied:
(i) none of the representations and warranties to be given by British Energy Parties, Newco 1 or Newco 2 in the Nuclear Liabilities Agreements (with the same effect exception of the Acquisition Warranties (as if made on defined in the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to Option Agreement)) would be performed or satisfied at or prior to the Closing Dateuntrue; and
(ii) since October 31none of the undertakings to be given by British Energy Parties, 2004 (as defined below), there has been no material adverse change Newco 1 or Newco 2 in the condition Nuclear Liabilities Agreements would be materially breached, were those agreements to be entered into;
(financial or other), earnings, business or assets I) the initial Conditions set out in clause 3 of the Company and its subsidiaries taken Creditor Restructuring Agreement (other than any Initial Condition that refers to the satisfaction or waiver of the conditions in this clause 3.1) having been satisfied on or before 31 January 2005, or such later date as a wholethe Secretary of State may in writing agree;
(J) the Secretary of State, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).acting reasonably, being satisfied that:
(i) Subsequent valid fixed and floating security has been granted by each of the British Energy Parties and Newco 1 and Newco 2 in favour of NLF to secure the execution of this Purchase Decommissioning Default Payment (as defined in the Contribution Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as such security to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance reasonably comparable to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust security granted in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee favour of the Trust Secretary of State under or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents Credit Facility Agreement (with such amendments as NLF may reasonably require) and shall not include as assets the subject of the security the benefits and rights of the Group under the Historic Liabilities Funding Agreement and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty Nuclear Liabilities Funding Agreement (the “Security”); and
(ii) each of the TrustBritish Energy Parties and Newco 1 and Newco 2 have entered into such other security documentation as NLF may have reasonably required for the purpose of creating the Security over any or all of the assets and undertaking of each of those persons, on such terms as NLF may have reasonably required for the Guarantor and/or purpose of securing the CompanyDecommissioning Default Payment;
(iii) all consents and approvals for the creation of the Security have been obtained;
(iv) the Security will, after it becomes effective, rank ahead of any other mortgage, pledge, lien, charge, assignment, hypothecation, or security interest or any other agreement or arrangement having the effect of conferring security granted by, or which has been created in respect of the assets of, any of the British Energy Parties, Newco 1 or Newco 2 (except for the exceptions to the negative pledge set out in paragraph 14.8 of the New Bond Term Sheet set out as Schedule 9 to the case may be, and not by such trustee or officer in any individual capacity.Creditor Restructuring Agreement); and
Appears in 1 contract
Sources: Government Restructuring Agreement (British Energy PLC)
Conditions. 4.1 The obligations agreement of the parties under Creditor Parties contained in Clause 3.1 of this Purchase Supplemental Agreement are shall be subject to the following conditionscondition that the Creditor Parties shall have received in form and substance satisfactory to the Security Trustee on behalf of the Lenders and their legal advisers on or before the signature hereof:
(a) The representations and warranties contained herein shall be accurate as a certificate of a Director of the date Borrower confirming the names and offices of delivery all the Directors and/or Officers of the Preferred Securities.Borrower, and confirming that the Borrower's incorporation and constitutional documents have not been altered or amended since 23 March 2009;
(b) [Reserved].true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Borrower, authorising and approving the execution of this Supplemental Agreement and any other document or action to which the Borrower is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(c) ▇▇▇▇▇▇the original of any power of attorney issued by the Borrower pursuant to such resolutions aforesaid;
(d) certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, ▇▇approvals or consents with respect to this Supplemental Agreement (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Security Trustee deems appropriate;
(e) an original of this Agreement and the Mortgage Addendum, together with evidence that the Mortgage Addendum has been duly registered against the Ship in accordance with the laws of the Republic of The ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.Islands;
(f) The Purchaser shall have received such legal opinions as the opinion Security Trustee may require in respect of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee matters contained in this Supplemental Agreement and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.Mortgage Addendum;
(g) The Purchaser shall have received a duly executed confirmation from each Security Party in the opinion form of ▇▇▇▇▇▇▇▇Schedule 3 hereto, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for confirming that (notwithstanding the Delaware Trustee, dated the Closing Date, addressed amendments made to the Purchaser Loan Agreement pursuant to this Agreement) the Finance Documents to which it is a party and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.its obligations thereunder remain valid and binding; and
(h) The Company shall have furnished to receipt by the Purchaser a certificate Lenders of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, amendment fee referred to in Clause 7.1 and the Trust shall have furnished expenses referred to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowClause 7.2.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the following conditionsconditions precedent:
(a) The representations the Company, each other Loan Party and warranties contained herein each Bank shall be accurate have executed and delivered this Amendment and such other documents and instruments as of the date of delivery of the Preferred Securities.Agent may reasonably require;
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Groupdelivered, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are caused to be governed or qualified bydelivered, or that they are otherwise subject toto Agent, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Companycorporate secretary or assistant corporate secretary of each Loan Party pursuant to which such secretary or assistant secretary, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer on behalf of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, such Loan Party certifies as to (ix) the incumbency and signature of the Persons executing this Amendment and any other Loan Documents delivered in connection herewith on behalf of such Loan Party, (y) resolutions, which shall be attached thereto, authorizing the execution, delivery and performance of this Amendment and such Loan Documents by such Loan Party, and (iiz) below andthe fact that the articles of incorporation, articles of organization, bylaws, limited liability company agreement or other organizational documents of such Loan Party have not been amended, modified or supplemented since the date on which certified copies thereof previously were delivered to Agent under the Loan Documents, and remain in the case of the Trust, as to (i) below.full force and effect;
(ic) the Company shall have delivered, or caused to be delivered, to Agent, with respect to each Loan Party, a recent certificate of good standing issued by the Secretary of State of such Loan Party's jurisdiction of incorporation;
(d) the representations and warranties set forth in Section 5 of this Purchase Agreement are Amendment shall be true and correct on and as of correct;
(e) the Closing Date with the same effect as if made on the Closing Date, and Agent shall have received from the Company for the account of each Bank an upfront, fully-earned and non-refundable administrative fee in the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Dateamount of $81,250; and
(iif) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries all proceedings taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby by this Amendment and thereby all documents, instruments and other legal matters incident thereto shall be deemed reasonably satisfactory to be a representation the Agent and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityits legal counsel.
Appears in 1 contract
Sources: Credit Agreement (Energy West Inc)
Conditions. The obligations This Amendment shall be a binding agreement among the parties hereto upon the satisfaction of the parties under following conditions precedent (the first date all such conditions set forth in this Purchase Agreement Section 3 are subject to satisfied, the following conditions:“Second Amendment Effective Date”):
(a) The representations the execution and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.this Amendment by all parties hereto;
(b) [Reserved].the Common Stock (i) shall be designated for quotation or listed on the Principal Market and (ii) shall not have been suspended by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), Principal Borrower shall have duly executed and delivered an opinion, dated to Lenders the Closing Date, addressed to Second Amendment Notes in accordance with the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion terms of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor this Amendment and the Trust and by government officials Financing Agreement (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991amended hereby).;
(d) The Purchaser prior to the Second Amendment Effective Date, Principal Borrower shall have been furnished taken such steps as may be permitted to cause the opinion transactions contemplated hereby, including any related acquisition (or deemed acquisition) from Principal Borrower, or disposition (or deemed disposition) to Principal Borrower, of MayerCommon Stock (or derivative securities relating thereto) by each of Lenders and their respective Affiliates (including Victory Park Capital Advisors, BrownLLC, ▇▇Victory Park GP, LLC, Victory Park ▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, LLC, Jacob Capital, L.L.C. and ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP), special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed by each other individual who is or will be subject to the Purchaserreporting requirements of Section 16(a) of the 1934 Act with respect to the transactions contemplated by this Amendment, to be exempt from Section 16(b) of the 1934 Act pursuant to Rule 16b-3 thereunder (if and to the extent any such transaction, acquisition (or deemed acquisition) or disposition (or deemed disposition) would otherwise be subject to Section 16(b) of the 1934 Act), in substantially a manner acceptable to Agent, and shall have provided to Agent copies of resolutions of the Board (in a form set out in Annex D hereto.acceptable to Agent) approving such transactions for purposes thereof, certified by the Secretary of Principal Borrower; and
(ge) The Purchaser Agent shall have received the opinion of ▇▇▇▇▇▇▇▇received, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser duly executed and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed delivered by the Chief Executive Officerparties thereto where applicable, President or a Vice Presidentthe agreements, documents and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trustinstruments set forth on Exhibit C attached hereto, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance reasonably acceptable to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityAgent.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the following terms and conditions:
(a) The representations and warranties contained herein shall be accurate as Each of the date Original Banks shall have returned to the Borrowers the Note executed by the Borrowers in favor of delivery of such Original Bank in relation to the Preferred Securities.Original Credit Facility;
(b) [Reserved].The Borrowers shall have executed and delivered to each Original Bank and each New Bank a new Note in the amount of such Bank's Commitment;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), The Administrative Agent shall have delivered an opinion, dated received the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, following documents in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form Administrative Agent and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to its legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.advisers:
(i) copies of the representations and warranties in this Purchase Agreement are resolutions adopted by the board of directors of each Borrower, certified as true and correct on complete by an officer of such Borrower, evidencing approval of this Amendment and as the Notes and authorizing an appropriate officer or officers or attorney-in-fact or attorneys-in-fact of the Closing Date with each such Borrower to execute the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have 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; andbehalf;
(ii) since October 31copies from each Borrower, 2004 (certified as defined below)true and complete by an officer of such Borrower, there has been no material adverse change in the condition (financial of all documents evidencing any other necessary action, approvals or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent consents with respect to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company Amendment and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents Notes and the transactions contemplated hereby and thereby shall be deemed to be thereby; and
(iii) a representation and warranty certificate signed by the President, Treasurer, Comptroller, Controller or chief financial officer of each of the TrustBorrowers to the effect that (A) no Default or Event of Default shall have occurred and be continuing and (B) the representations and warranties of the Borrowers contained in this Amendment are true and correct as of the date of such certificate;
(d) The Borrowers shall have duly executed and delivered this Amendment and the Notes to the Administrative Agent;
(e) The Borrowers shall have duly executed and delivered to the Administrative Agent the fee letter of even date herewith of the Original Banks, supplemental to the Fee Letter (the "Supplemental Fee Letter"); and
(f) The Administrative Agent shall have received executed counterparts of this Agreement from each of the Banks and the Agents (or, in the case of any Bank as to which an executed counterpart shall not have been received, the Guarantor and/or Administrative Agent shall have received in form satisfactory to it a telex, facsimile or other written confirmation from such Bank of the Company, as the case may be, and not execution of a counterpart of this Agreement by such trustee or officer in any individual capacityBank).
Appears in 1 contract
Conditions. (a) The obligations of the parties under this Purchase Agreement Company to complete the Repurchase and acquire the Shares at the Closing Date pursuant hereto are subject to the satisfaction or waiver by the Company on or prior to the Closing Date of each of the following conditions:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties of the Stockholder set forth in this Purchase Agreement are Section 3 hereof shall be true and correct in all material respects on the Closing Date as though made on and as of such date;
(ii) the Closing Date with Stockholder shall have delivered the same effect as if made on Shares to the Closing Date, and Company;
(iii) the Company and the Trust, as applicable, Stockholder shall have complied with performed in all the agreements and satisfied material respects all the conditions on its part obligations required to be performed or satisfied by it under this Agreement at or prior to the Closing Dateincluding, without limitation, those set forth in Section 4;
(iv) the Public Offering shall have been closed and all of the 7,000,000 shares of the Common Stock offered thereby shall have been sold therein; and
(iiv) since October 31the Company shall have received an opinion of counsel to the Stockholder, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of form and substance reasonably satisfactory to the Company and its subsidiaries taken dated as a wholeof the Closing Date, whether or not arising from transactions occurring as to the matters set forth in the ordinary course of business (a “Material Adverse Change”)Sections 3.1 and 3.2.
(ib) Subsequent The obligations of the Stockholder to complete the Repurchase and sell the Shares at the Closing Date pursuant hereto are subject to the execution of this Purchase Agreement, there shall not have been any change, satisfaction or any development involving a prospective change, in waiver by the Stockholder on or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior prior to the Closing Date, of each of the following conditions:
(i) the representations and warranties of the Company set forth in Section 2 hereof shall be true and correct in all material respects on the Trust Closing Date as though made on and as of such date;
(ii) the Company shall have furnished paid or tendered to the Purchaser Stockholder the purchase price for the Shares;
(iii) the Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing including, without limitation, those set forth in Section 4;
(iv) the Public Offering shall have been closed and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any all of the conditions specified 7,000,000 shares of the Common Stock offered thereby shall have been sold therein; provided, that nothing contained in this Section 3 5(b) shall not be deemed to limit the Stockholder's right to terminate this Agreement pursuant to Section 7(b); and
(v) the Stockholder shall have been fulfilled when and as provided in this Purchase Agreementreceived an opinion of counsel to the Company, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance reasonably satisfactory to the Purchaser or its counsel, this Purchase Agreement Stockholder and all the Purchaser’s obligations hereunder may be canceled at dated as of the Closing Date by the Purchaser. Notice of such cancellation shall be given Date, as to the Company, the Guarantor matters set forth in Sections 2.1 and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity2.2.
Appears in 1 contract
Sources: Stock Repurchase Agreement (Itt Educational Services Inc)
Conditions. The obligations Any transfer of the parties under this Purchase Agreement are Lease described in Subsection (a) is further subject to the satisfaction of the following conditions:
(a) The representations and warranties contained herein shall conditions precedent, each of which is hereby agreed to be accurate reasonable as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.hereof:
(i) any proposed transferee, by instrument in writing, for itself and its successors and assigns, and expressly for the representations benefit of Agency, must expressly assume all of the obligations of Tenant under this Lease, and warranties any other agreements or documents entered into by and between Agency and Tenant relating to the Premises or the Project Area, and must agree to be subject to all of the conditions and restrictions to which Tenant is subject. It is the intent of this Lease, to the fullest extent permitted by Law and equity and excepting only in the manner and to the extent specifically provided otherwise in this Purchase Agreement are true Lease, that no transfer of this Lease, or any interest therein, however consummated or occurring, and correct on whether voluntary or involuntary, may operate, legally or practically, to deprive or limit Agency of or with respect to any rights or remedies or controls provided in or resulting from this Lease with respect to the Premises and as the construction of the Closing Date with Improvements that Agency would have had, had there been no such transfer or change;
(ii) all instruments and other legal documents involved in effecting the same effect as if made on transfer shall have been submitted to Agency for review, including the Closing Dateagreement of sale, transfer, or equivalent, and the Company Agency shall have approved such documents which approval may be withheld or delayed in Agency’s sole and the Trust, as applicable, absolute discretion;
(iii) Tenant shall have complied with all the agreements and satisfied all provisions of Subsection (d) of this Section 15.1;
(iv) there shall be no Event of Default or Unmatured Event of Default on the conditions on its part of Tenant under this Lease or any of the other documents or obligations to be performed or satisfied at or prior assigned to the Closing Dateproposed transferee, or if not cured, Tenant or the proposed transferee have made provisions to cure of the Event of Default, which provisions are satisfactory to Agency in its sole discretion;
(v) the proposed transferee (A) has demonstrated to Agency’s reasonable satisfaction that it is capable, financially and otherwise, of performing each of Tenant’s obligations under this Lease and any other documents to be assigned, and (B) is subject to the jurisdiction of the courts of the State of California;
(vi) the proposed transfer is not in connection with any security, bond or certificates of participation financing as determined by Agency in its sole discretion; and
(iivii) since October 31, 2004 (as defined below), there has been no material adverse change in Tenant deposits sufficient funds to reimburse Agency for its reasonable legal expenses to review the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)proposed assignment.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the following terms and conditions:
(a) The representations the Agents shall have received the following documents in form and warranties contained herein substance satisfactory to the Agents and their legal advisers:
(i) copies, certified as true and complete by an officer of each of the Subject Companies, of the resolutions of the Management Committee of such Subject Company evidencing approval of this Amendment and authorizing an appropriate officer or officers or attorney-in-fact or attorneys-in-fact to execute the same on behalf of such Subject Company, or other evidence of such approvals and authorizations as shall be accurate acceptable to the Agents and their legal advisers;
(ii) copies, certified as true and complete by an officer of the date Subject Companies or other party acceptable to the Agents and their legal advisers, of delivery all documents evidencing any other necessary action (including actions by such parties thereto other than such Subject Company as may be required by the Agents), approvals or consents with respect to this Amendment;
(iii) copies, certified as true and complete by an officer of each of the Preferred Securities.respective Subject Company of the certificate of formation of and operating agreement (or equivalent instruments) thereof;
(biv) [Reserved].certificate of the Secretary of the Borrower certifying that it legally and beneficially owns, directly or indirectly, all of the issued and outstanding membership interests of each of the other Subject Companies and that such membership interests are free and clear of any liens, claims, pledges or other encumbrances whatsoever;
(cv) certificate of the Secretary of each Subject Company (other than the Borrower) certifying as to the record ownership of all of its issued and outstanding membership interests or a certificate certifying that there have been no changes in the constitutional documents of such Subject Company;
(vi) an incumbency certificate of each Subject Company;
(vii) certificates of the jurisdiction of formation of each Subject Company as to the good standing thereof;
(viii) legal opinions addressed to the Agents from (i) Gardere ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, L.L.P., counsel for the Sellers (the “Company Counsel”)Subject Companies, shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPL.L.P., special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the TrustAgents, in each case dated in such form as the Closing DateArrangers may require, and, in as well as such other legal opinions as the case Arrangers shall have required as to all or any matters under the laws of the CompanyUnited States of America, as to (i) the State of Delaware, the State of New York, the State of Texas and (ii) below and, in the case Republic of Panama covering the representations and conditions which are the subjects of Sections 2 and 4.1 of the Trust, as to (i) belowCredit Agreement.
(ib) The Borrower shall have executed an amended and restated promissory note to the representations and warranties in this Purchase Agreement are true and correct on and as order of the Closing Date with Administrative Agent evidencing the same effect as if made on increased amount of the Closing Date, Credit Facility;
(c) Each Guarantor shall have executed the Consent and the Company Reaffirmation Agreement annexed hereto and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior an amendment to the Closing Datefirst preferred naval Panamanian mortgages on Unit owned thereby substantially in the form of Exhibit B hereto and such Amendment shall have been duly provisionally registered in accordance with Panamanian law; and
(iid) since October 31The Administrative Agent shall have received evidence satisfactory to the Arrangers and to their legal advisor that, 2004 (as defined below)save for the liens created by the Mortgages and the Assignments, there has been are no material adverse change in the condition (financial liens, charges or other), earnings, business or assets encumberances of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If kind whatsoever on any of the conditions specified in this Section 3 shall not have been fulfilled when and Units or on their respective earnings except as provided in this Purchase Agreement, permitted hereby or if by any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement Security Documents; and
(e) The Borrower shall not be reasonably satisfactory in form and substance have paid to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given Agents a fee equal to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee .50% of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed Additional Credit Facility, such fee to be a representation divided evenly between the Agents and warranty payable upon signing of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitythis Amendment.
Appears in 1 contract
Conditions. 4.1 The obligations agreement of the parties under Creditor Parties contained in Clause 3.1 of this Purchase Fifth Supplemental Agreement are shall be subject to the following conditions:
(a) The representations and warranties contained herein shall be accurate as of conditions that the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), Creditor Parties shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, received in form and substance satisfactory to the Purchaser; Security Trustee on behalf of the Lenders and their legal advisers on or before the signature hereof:
(iia) a certificate of a Director of the Borrower confirming the names and offices of all the Directors and/or Officers of the Borrower, and confirming that the Borrower’s incorporation and constitutional documents have not been altered or amended since 28 May 2015;
(b) true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Borrower, authorising and approving the execution of this Fifth Supplemental Agreement and any other document or action to which the Borrower is a party, and authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(c) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies original of any power of attorney issued by the Borrower pursuant to such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).resolutions aforesaid;
(d) The Purchaser shall have been furnished certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this Fifth Supplemental Agreement (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.Security Trustee deems appropriate;
(e) The Purchaser shall have received a duly executed original of this Fifth Supplemental Agreement;
(f) an executed copy of the opinion of ▇▇▇▇▇▇▇▇MOA, ▇together with evidence that the deposit thereunder has been paid by the seller and is held in an escrow account with W▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere F▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed LLP in London upon terms acceptable to the Purchaser, in substantially the form set out in Annex D hereto.Lenders;
(g) such legal opinions as the Security Trustee may require in respect of the matters contained in this Fifth Supplemental Agreement;
(h) a duly executed confirmation from each Security Party in the form of Schedule 3 hereto, confirming that (notwithstanding the amendments made to the Loan Agreement pursuant to this Agreement) the Finance Documents to which it is a party and its obligations thereunder remain valid and binding; and
(i) receipt by the Lenders of the expenses referred to in Clause 8.
4.2 The Purchaser agreement of the Creditor Parties contained in Clause 3.1 (d) of this Fifth Supplemental Agreement shall be further subject to the condition that the Creditor Parties shall receive within forty five (45) days of the date of this Fifth Supplemental Agreement evidence satisfactory to the Agent of the agreement of Commerzbank AG and UniCredit Bank AG, as parties to other loan facilities currently in place with Paragon Shipping Inc. as borrower, that they have received agreed to the opinion sale of the vessels which are the subject of those loan facilities and that the terms that relate to the write off of the balance of those loan facilities are not more favourable than those terms provided for in this Fifth Supplemental Agreement. For the avoidance of doubt, should the Borrower fail to produce the above mentioned evidence within the above mentioned time period, then the amount of the Loan in the sum of US$2,192,375 referred to in Clause 3.1 (d) shall be deemed not to have been written off and the Borrower shall instead provide to the Lenders a further unsecured PIK Note in the sum of US$2,192,375 on the same basis and upon the same terms as described in Clause 6 hereof.
4.3 Upon receipt by the Lenders’ lawyer at the closing meeting for the Vessel’s sale of the original of the agreed form Protocol of Delivery and Acceptance duly signed by the seller and the buyer under the MOA in accordance with the release instructions contained in the MT199 Swift instructions sent to the Agent by the buyer’s remitting bank, the Lenders shall immediately provide to the Borrower evidence of the discharge of the Mortgage by way of a certificate of ownership and encumbrances issued by the M▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Islands Flag Administration (IRI) in Piraeus confirming the Delaware TrusteeBorrower as owner of the Vessel and showing the Vessel free from all registered encumbrances, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate date of delivery of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowVessel.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Fifth Supplemental Agreement (Paragon Shipping Inc.)
Conditions. The obligations effectiveness of this Amendment is expressly contingent upon Borrowers' delivery to Agent of the parties under this Purchase Agreement are subject following documents, in form and content acceptable to the following conditionsAgent, in its sole discretion:
(a) The representations and warranties contained herein shall be accurate Notes executed by the Borrowers;
(b) This Amendment executed by the Borrowers;
(c) Copies of the resolutions of each Borrowers' governing boards, certified by the secretaries of each Borrower as of the date of this Amendment, authorizing the execution, delivery and performance of this Amendment, the Notes, the other Loan Documents, and each other document to be delivered pursuant hereto;
(d) Copies of each Borrowers' charter or articles of organization, as applicable, all certified as of the Preferred Securitiesmost recent date practicable by the Secretary of State of its incorporation or formation, together with certificates dated the date of this Amendment of each Borrowers' secretary to the effect that such charters or articles of organization have not been amended since the date of the aforesaid Secretary of State certifications;
(e) Copies of each Borrowers' by-laws or operating agreement, as applicable, all certified by each Borrowers' secretary as of the date of this Amendment;
(f) Certificates dated as of the date of this Amendment of each Borrowers' secretary as to the incumbency and signatures of the officers of the Borrowers executing this Amendment, the Notes, the other Loan Documents, and each other document to be delivered pursuant hereto;
(g) Certificates, as of the most recent dates practicable, of the aforesaid Secretary of State, the Secretary of State of each state in which each Borrower is qualified as foreign corporations or entities and of the department of revenue or taxation of the foreign states as to the good standing of each Borrower;
(h) Written opinions of Bass, Berr▇ & ▇ims, ▇▇C, each Borrowers' counsel, dated the date of this Amendment and addressed individually to Agents and Banks, in form reasonably satisfactory to the Agents and Banks.
(bi) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion Payment of the Company’s General Counsel Upfront Fees described in form paragraph 17 below, together with all reasonable costs and substance satisfactory to expenses incurred by Agent in connection with the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsAmendment, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)reasonable attorneys' fees.
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations This Amendment shall become effective on the date (the "Effective Date") when each of the parties under this Purchase Agreement are subject following has been fulfilled to the following conditionssatisfaction of the Lender:
(a) The representations and warranties contained herein shall be accurate as Each of the date parties hereto shall have executed and delivered a counterpart of delivery this Amendment and the Lender shall have received an amendment fee of $224,000 from the Preferred SecuritiesBorrower.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for There shall exist no Default or Event of Default under the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser Credit Agreement and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the all representations and warranties in this Purchase Agreement are contained therein shall be true and correct on and as of the Closing Effective Date with the same effect as if made on the Closing Datesuch date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior except to the Closing Date; and
(ii) since October 31, 2004 (extent that such representation is stated to relate to a specified earlier date in which case such representation and warranty shall be true and correct as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)such earlier date.
(ic) Subsequent to The Lender shall have received a copy of the execution resolutions of the Board of Directors of the Borrower, the Parent and the Guarantor Parents authorizing the execution, delivery and performance by them of this Purchase Agreement, there shall not have been any change, or any development involving a prospective changeAmendment and an incumbency certificate, in each case certified by its Secretary or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiesan Assistant Secretary.
(jd) Prior The Lender shall have received legal opinions from counsel to the Closing DateParent, the Company Guarantor Parents and the Trust shall have furnished Borrower (x) covering the matters contained in paragraphs (1) through (5) of Exhibit D to the Purchaser Credit Agreement with respect to this Amendment and its counsel such (y) stating that no further information, certificates and documents as action is necessary to maintain the Purchaser or its counsel may reasonably request. If any perfection of the conditions specified security interest in the Security Documents granted by such Credit Party to secure the obligations of such Credit Party, as amended by this Section 3 Amendment and (2) otherwise in form and substance satisfactory to the Lender.
(e) All proceedings and all documents, instruments and other legal matters in connection with this Amendment shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or Lender and its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor Counsel and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor Lender shall have received such other documents, certificates, instruments and delivered opinions relating to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby as it shall reasonably request, in each case, in form and thereby shall be deemed substance satisfactory to be a representation it.
(f) All fees and warranty expenses of the Trust, the Guarantor and/or the Company, as the case may be, Lender (including fees and not by such trustee or officer expenses of its counsel) incurred in any individual capacityconnection with this Amendment shall have been paid.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under amendment and restatement of the Existing Credit Agreement pursuant to Section 4 of this Purchase Agreement are shall be subject to the satisfaction (or waiver) of the following conditionsconditions precedent:
(a) The representations and warranties contained herein Agent (or its counsel) shall be accurate as have received from each of the date Borrower, the Parent, each Class B Lender identified on Schedule 1 hereto and the Required Lenders under (and as defined in) the Existing Credit Agreement either a counterpart of delivery this Agreement signed on behalf of such party or written evidence satisfactory to the Preferred SecuritiesAgent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved]The Agent (or its counsel) shall have received from each Subsidiary, if any, that is a Subsidiary Loan Party as of the Restatement Effective Date, and is not already a Guarantor, a supplement to the Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person.
(c) ▇▇▇▇▇▇, ▇▇▇▇The Agent shall have received a favorable written opinion (addressed to the Agent and the Lenders and dated the Restatement Effective Date) of each of (i) R▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ General Counsel of the Borrower, substantially in the form of Exhibit B-1 hereto, and (ii) Shearman & FingerSterling LLP, P.A.counsel to the Loan Parties, special Delaware substantially in the form of Exhibit B-2 hereto, in each case covering such other matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions as the Agent or the Required Lenders shall reasonably request. The Parent and the Borrower hereby request such counsel for to deliver such opinions.
(d) The Agent shall have received such documents and certificates as the Delaware TrusteeAgent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Restatement Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions, all in form and substance satisfactory to the Agent and its counsel.
(e) The representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects as of the Restatement Effective Date, no Default shall have occurred and be continuing as of the Restatement Effective Date and the Agent shall have received a certificate, dated the Closing Date, addressed to Restatement Effective Date and signed by the Purchaser, JPMorgan Chase Bank, National AssociationPresident, the Delaware Trustee Chief Executive Officer, a Vice President or a Financial Officer of each of the Parent and the CompanyBorrower, in substantially confirming the form set out in Annex C heretoforegoing.
(f) The Purchaser Agent shall have received (i) all fees and other amounts due and payable on or prior to the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Restatement Effective Date, addressed including, to the Purchaserextent invoiced, in substantially reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the form set out in Annex D Borrower under the Loan Documents, and (ii) if any Class B Lender is identified on Schedule 1 hereto, all accrued and unpaid interest under the Existing Credit Agreement.
(g) The Purchaser Collateral Requirement shall have been satisfied. The Agent shall have received the opinion results of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for a search of the Delaware Trustee, dated the Closing Date, addressed Uniform Commercial Code (or equivalent) filings made with respect to the Purchaser Loan Parties in the jurisdictions contemplated by the Perfection Schedule (updated as provided in the Collateral Agreement) and JPMorgan Chase Bank, National Association, in substantially copies of the form set out in Annex E heretofinancing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 of the Amended Credit Agreement or have been released.
(h) The Company Agent shall have furnished received evidence that the insurance required by the Loan Documents is in effect.
(i) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(j) The Term Loan Amendment and Restatement Agreement dated as of the date hereof relating to the Purchaser Term Loan Agreement shall become effective on the Restatement Effective Date.
(k) An amended and restated Collateral Agreement substantially in the form of Exhibit C hereto shall be executed and delivered by the parties thereto, and the parties thereto shall have executed and delivered any amendments to the Security Documents as shall be reasonably requested by the Collateral Agent to give effect to the Restatement Transactions.
(l) (i) The GM Second Lien Documents, in the forms attached hereto as Exhibit D, as well as the GM Intercreditor Agreement, shall have been executed and delivered by the parties thereto prior to or substantially concurrently with the effectiveness of this Agreement, (ii) the parties thereto shall have executed and delivered the GM Access and Security Agreement in the form attached hereto as Exhibit E prior to or substantially concurrently with the effectiveness of this Agreement, (iii) the parties thereto shall have executed and delivered agreements (including the GM Settlement Agreement), in the forms delivered to the Agent and the Lenders prior to the execution and delivery of this Agreement, relating to certain commercial transactions between the Borrower and GM, copies of such executed agreements shall have been delivered to the Agent and the Agent shall be satisfied that such agreements are effective and that any payments to be made to the Borrower thereunder upon the effectiveness thereof are being made substantially concurrently with the effectiveness of this Agreement and (iv) the Agent shall have received a certificate of certificate, dated the Company, Restatement Effective Date and signed by the President, the Chief Executive Officer, a Vice President or a Vice PresidentFinancial Officer of each of the Parent and the Borrower, to the effect that true, correct and complete copies of all documents and agreements referred to in clauses (i), (ii) and (iii) of this paragraph, and Chief Financial Officerany and all documents and agreements relating thereto, Treasurer or Assistant Treasurer have been delivered to the Agent. The Agent shall notify the Borrower and the Lenders of the CompanyRestatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the Trust shall have furnished to foregoing, the Purchaser a certificate amendment and restatement of the Trust, signed by an Administrative Trustee Existing Credit Agreement as contemplated hereby shall not become effective unless each of the Trustforegoing conditions is satisfied (or waived) at or prior to 5:00 p.m., in each case dated the Closing DateNew York City time, on September 16, 2009 (and, in the case event such conditions are not so satisfied or waived, the Existing Credit Agreement shall remain in effect without giving effect to any provisions of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”Agreement).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Revolving Credit Agreement (American Axle & Manufacturing Holdings Inc)
Conditions. The obligations This Agreement shall become effective as of the parties under this Purchase Agreement are subject to first date (the “Fourth Amendment Effective Date”) when each of the following conditionsconditions shall have been satisfied:
(a) The representations the Administrative Agent (or its counsel) shall have received from each Credit Party, the Replacement Term Lenders, the Administrative Agent and warranties contained herein shall be accurate as the ABL Administrative Agent (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the date Administrative Agent (which may include facsimile or electronic transmission of delivery a signed signature page of the Preferred Securities.this Agreement) that such party has signed a counterpart of this Agreement or a Lender Consent;
(b) [Reserved].the Administrative Agent shall have received (i) any required notice of prepayment of Loans pursuant to Section 2.10(a) of the Existing Credit Agreement and (ii) any required notice of borrowing of Replacement Term Loans pursuant to Section 2.1(b) of the Existing Credit Agreement; provided, in each case, that such notice of prepayment and notice of borrowing shall be delivered in accordance the time periods specified in Sections 2.10(a) and 2.1(b), as applicable, of the Existing Credit Agreement or such shorter period as the Administrative Agent may agree;
(c) ▇▇▇▇▇▇the representations and warranties set forth in Section 9 above shall be true and correct as of the Fourth Amendment Effective Date;
(d) the Administrative Agent shall have received a certificate, ▇▇▇▇▇dated the Fourth Amendment Effective Date and executed by a Responsible Officer of the Borrower Representative, confirming the accuracy of the representations and warranties set forth in Section 9 above;
(e) The Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit K attached to the Existing Credit Agreement from the chief financial officer of the U.S. Borrower that shall certify as to the solvency of Parent and its Subsidiaries (on a consolidated basis) after giving effect to the transactions contemplated hereunder;
(f) Administrative Agent and Arrangers shall have received a duly executed letter of direction from the Borrowers addressed to Administrative Agent and Arrangers, directing the disbursement on the Fourth Amendment Effective Date of the proceeds of the Refinanced Term Loans made on such date;
(g) Agents and Lenders shall have received an executed copy of the customary written opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers Credit Parties, and Blenheim Advocaten, Netherlands counsel for the Euro Guarantors, in each case, addressed to Agents and Lenders, dated as of the Fourth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent and Arrangers (and each Credit Party hereby instructs such counsel to deliver such opinion to Agents and Lenders);the Administrative Agent shall have received customary closing certificates and documentation consistent with those delivered on the Closing Date and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that the Replacement Term Loans contemplated hereby are secured by the Collateral;
(h) the Administrative Agent shall have received customary closing certificates and documentation consistent with those delivered on the Closing Date and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that the Replacement Term Loans contemplated hereby are secured by the Collateral;
(i) the payment of the Term Loan Repayment Amount by the Borrowers to the Administrative Agent for the accounts of the existing Term Lenders, as a voluntary prepayment in full of the Loans outstanding on the Fourth Amendment Effective Date, shall occur substantially simultaneously with the Borrowing of the Replacement Term Loans;
(j) Borrower shall have paid to Lenders, Agents and Arrangers the fees payable on the Fourth Amendment Effective Date referred to in Section 2.8 of the Amended Credit Agreement and all expenses payable pursuant to Section 10.2 of the Amended Credit Agreement or pursuant any other letter agreement with the Arrangers which have accrued to or are otherwise payable on the Fourth Amendment Effective Date, in each case to the extent the U.S. Borrower has received invoices therefor at least three Business Days prior to the Fourth Amendment Effective Date;
(k) no later than three Business Days in advance of the Fourth Amendment Effective Date, the Replacement Term Lenders shall have received all documentation and other information reasonably requested by it in writing at least ten days in advance of the Fourth Amendment Effective Date, which documentation or other information is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(l) each Arranger shall have received for each Mortgaged Property, the completed Flood Certificate with respect such property, which Flood Certificate shall be addressed to Collateral Agent and otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, U.S. Borrower's written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of a Mortgage and (y) as to whether the community in which such Mortgaged Property is located is participating in the Flood Program; (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that U.S. Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and (D) if such Mortgaged Property is located in a Flood Zone and is located in a community that does not participate in the Flood Program, evidence that U.S. Borrower has obtained private flood insurance that is in compliance with all applicable regulations or, in the absence of regulations, is otherwise in form and substance reasonably satisfactory to Collateral Agent;
(m) each of the Euro Borrower and the Euro Guarantors shall have executed and delivered a Joinder to the ABL Intercreditor Agreement in the form attached as Exhibit A thereto; and
(n) the First Amendment to the ABL Loan Agreement, by and among Parent, the U.S. Borrower, the ABL Administrative Agent and the other parties thereto (the “Company CounselABL First Amendment”), shall have delivered an opinionbecome effective substantially concurrently with, dated or prior to, the Closing DateFourth Amendment Effective Date and, addressed pursuant to such ABL First Amendment, the ABL Lenders shall have consented to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)ABL Intercreditor Amendments.
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations consummation of the parties under transactions set forth in Sections 3 through 5 of this Purchase Amendment Agreement are shall be subject to the satisfaction of the following conditionsconditions precedent:
(a) The representations Administrative Agent (or its counsel) shall have received from each Borrower, each Tranche C Term Lender and warranties contained herein shall be accurate as Revolving Lenders constituting the Required Revolving Lenders either (i) counterparts of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the date Administrative Agent (which may include telecopy transmission of delivery a signed signature page of the Preferred Securitiesthis Agreement) that such party has signed counterparts of this Agreement.
(b) [Reserved].
The Administrative Agent shall have received a favorable written opinion (caddressed to the Administrative Agent and the Lenders and dated the Amendment Effectiveness Date) of each of (i) ▇▇▇▇▇▇, ▇▇▇▇Day, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel for the Borrowers, substantially in the form of Exhibit B-1, and (ii) ▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser▇. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee Vice President and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate General Counsel of the Company, signed by substantially in the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer form of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing DateExhibit B-2, and, in the case of each such opinion required by this paragraph, covering such other matters relating to the Loan Parties, the Loan Documents or the Transactions as the Required Lenders shall reasonably request. The Borrowers hereby request such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Amendment Effectiveness Date and signed by the President, a Vice President or a Financial Officer of each of the Borrowers, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.01 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received, or contemporaneously therewith shall receive, all fees and other amounts due and payable on or prior to the Amendment Effectiveness Date in connection with this Agreement and the transactions contemplated hereby, including, without limitation, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including, without limitation, fees, charges and disbursements of counsel), required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Administrative Agent shall have received a completed Perfection Certificate dated the Amendment Effectiveness Date and signed by an executive officer or Financial Officer of the Company, as together with all attachments contemplated thereby.
(g) The Transactions and the other transactions contemplated hereby shall not violate any applicable law, statute, rule or regulation or conflict with, or result in a default under, any material agreement of any Borrower or any of its subsidiaries. All consents and approvals necessary or advisable to (i) be obtained from any Governmental Authority or other Person in connection with the Transactions shall have been obtained, and (ii) below andall applicable waiting periods and appeal periods shall have expired, in each case without the case imposition of any burdensome conditions.
(h) There shall not have occurred or become known to the Lenders any material adverse change in the business, financial condition, results of operations, property or prospects of the TrustCompany and its Consolidated Subsidiaries, taken as to (i) belowa whole, since March 31, 2001.
(i) the representations and warranties A Reaffirmation Agreement substantially in this Purchase Agreement are true and correct on and as form of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there Exhibit C hereto shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiesdelivered by each party thereto.
(j) Prior To the extent the Administrative Agent deems it appropriate, the Administrative Agent shall have received counterparts of a Mortgage with respect to the Closing DateMortgaged Property located in Anoka, Minnesota, together with payment of the applicable mortgage registration tax and recording fees. The Administrative Agent shall notify the Company and the Trust Lenders of the Amendment Effectiveness Date (which shall have furnished be the date specified by the Company pursuant to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of Section 2(b) above; provided that the conditions specified in this Section 3 Agreement shall have been satisfied on or prior to such date), and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder shall not have been fulfilled when and as provided in this Purchase Agreement, or if any become effective unless each of the opinionsforegoing conditions is satisfied (or waived pursuant to Section 10.02 of the Restated Credit Agreement) at or prior to 3:00 p.m., certificates and documents mentioned above New York City time, on May 30, 2002 (and, in the event such conditions are not so satisfied or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Companywaived, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby Commitments shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by terminate at such trustee or officer in any individual capacitytime).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Alliant Techsystems Inc)
Conditions. The obligations This Joinder Agreement shall not become effective until Agent has received each of the parties under this Purchase Agreement are subject to the following conditionsfollowing:
(a) The representations and warranties contained herein shall be accurate as an Officer's Certificate of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National AssociationJoining Borrower, in form and substance reasonably satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion Agent, dated as of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Companydate hereof, as to (i) the resolutions of the Board of Directors (or similar governing body) of the Joining Borrower authorizing the execution, delivery and performance of this Joinder Agreement and of all instruments contemplated herein to be executed and delivered by Joining Borrower in connection herewith (a copy of such resolutions to be incorporated into such certificate), such certificate to state that said copy is a true and correct copy of such resolutions and that such resolutions were duly adopted and have not been amended, superseded, revoked or modified in any respect and remain in full force and effect as of the date of such certificate; (ii) below andthe election, in the case incumbency and signatures of the Trust, as to officer or officers (ior other official) below.
of Joining Borrower executing and delivering this Joinder Agreement and each other instrument or document furnished in connection herewith; (iiii) the representations and warranties Joining Borrower's organizational documents in this Purchase Agreement are true and correct on and effect as of the Closing Date with date hereof (a copy thereof to be attached to the same effect as if made on the Closing Datecertificate), and (iv) such other documents and information as Agent or any Bank shall reasonably request;
(b) a legal opinion from the Company legal counsel for Joining Borrower acceptable to Agent, in form, substance and scope reasonably satisfactory to Agent;
(c) a new Note dated as of the Trustdate hereof, as applicablein amendment and restatement, have complied with but not novation, of the existing Note, to which all existing Borrowers and Joining Borrower are parties, in form and substance reasonably satisfactory to Agent;
(d) unless such action is prohibited by the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior applicable Franchise Agreement, an amendment to the Closing DatePledge Agreement dated as of the date hereof pledging all outstanding shares of Joining Borrower, in form and substance reasonably satisfactory to Agent;
(e) a certificate from the appropriate public official of each jurisdiction in which Joining Borrower is organized as to the continued existence and good standing of Joining Borrower;
(f) a certificate from the appropriate public official of each jurisdiction in which Joining Borrower is authorized and qualified to do business as to the due qualification and good standing of Joining Borrower unless failure is not reasonably likely to have a Material Adverse Effect; and
(iig) since October 31, 2004 certified copies of Requests for Information of Copies (as defined belowForm UCC-11), there has been no material adverse change in the condition or equivalent reports, listing all effective financing statements which name Joining Borrower (financial or other)under its present name, earningsany trade names and any previous names) as debtor and which are filed, business or assets together with copies of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)all such financing statements.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Joinder Agreement (Cross Continent Auto Retailers Inc M&l)
Conditions. The obligations This Amendment shall become effective only upon the satisfaction in full, in a manner satisfactory to the Agent, of the following conditions precedent (the first date upon which all such conditions have been satisfied being herein called the (“Effective Date”).
(a) Agent shall have received all of the following documents, each document (unless otherwise indicated) being dated the date hereof, duly authorized, executed and delivered by the parties under this Purchase Agreement are subject thereto, and in form and substance reasonably satisfactory to the following conditionsAgent and the Lenders:
(ai) this Amendment;
(ii) that certain Collateral Account Agreement made by the Borrower in favor of the Agent in substantially the form attached hereto as Exhibit D (the “Collateral Account Agreement”); and
(iii) such additional documents, instruments and information as the Agent or the Lenders or their legal counsel may reasonably request.
(b) The representations and warranties contained in the Credit Agreement and/or in the other Loan Documents in each case, as Modified hereby (herein defined) and as contained herein shall be accurate true and correct in all material respects as of the date Effective Date as if made on such date, except to the extent such representations and warranties (i) relate to the Specified Defaults or any matter with respect to which written notice has been given to the Agent and/or the Lenders by the Borrower pursuant to and in accordance with the Credit Agreement or (ii) which by their terms expressly speak as of delivery of the Preferred Securities.
(b) [Reserved].an earlier date;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for Borrower shall be in full compliance with the Sellers (terms of the “Company Counsel”), Collateral Account Agreement and shall have delivered an opiniondeposited, dated or caused to be deposited, into the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; Collateral Account (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts defined in the law of any other jurisdiction. Such Company Counsel Opinion shall Collateral Account Agreement) an additional amount equal to $624,798.96 so that the total amount deposited in the Collateral Account is not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)less than $12,756,508.52.
(d) The Purchaser All corporate proceedings taken in connection with the transactions contemplated by this Amendment and all documents, Fifth Amendment to Credit Agreement instruments and other legal matters incident thereto shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed be reasonably satisfactory to the Purchaser Agent, the Lenders and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.their legal counsel; and
(e) The Purchaser Except for the Specified Defaults, no Default or Event of Default shall have received occurred or be continuing or shall result from the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution effectiveness of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred SecuritiesAmendment.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Credit Agreement (Superior Offshore International Inc.)
Conditions. The obligations of the parties under this Purchase Agreement are subject to 3.1 Completion is conditional on the following conditionsConditions being satisfied or, as the case may be, waived by the Sellers or the Buyer (as the case may be) pursuant to clause 3.4 or 3.5, on or before the Long Stop Date:
(a) The representations 3.1.1 the Reorganisation having been completed;
3.1.2 the Sellers and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) B▇▇▇▇▇▇'s board of directors having passed the Resolutions without any amendment;
3.1.3 approval for listing and trading of the Consideration Shares on The Nasdaq Stock Market having been obtained;
3.1.4 the Buyer shall have received a certificate of the secretary (or equivalent officer) of each Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of each Seller authorising the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby;
3.1.5 the Buyer shall have received a certificate of the secretary (or equivalent officer) of each Seller certifying the names and signatures of the officers of respective Seller authorised to sign this Agreement and the other documents to be delivered hereunder and t▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP;
3.1.6 the conduct of a due diligence investigation covering, counsel for among other things, the business, legal aspects, geological aspects, affairs, operations, assets, liabilities, financial condition, prospects and records of the Group Companies having been completed and the results of such due diligence investigation being satisfactory to the Buyer at its sole and absolute discretion;
3.1.7 the Letter of Affirmation has been duly issued by the Buyer to the Sellers;
3.1.8 the Warranties are true and accurate in all respects and not misleading in any respects as at the date of this Agreement, and remaining so as at Completion;
3.1.9 with the assistance of the Sellers, the Beneficial Owners and the Nominee Shareholders, all consents, approvals, permits, authorisations or clearances (as the case may be) that the Buyer considers necessary pursuant to applicable laws, regulations and/or rules in Zimbabwe in respect of, among other things, foreign investment and transfer of Shares, and all such consents, approvals, permits, authorisations and clearances not having been revoked or withdrawn, including but not limited to:
3.1.9.1. the Sellers acquiring a capital gains tax clearance certificate (the “Company CounselCapital Gains Tax Certificate”) from the Zimbabwe Revenue Authority (“ZIMRA”) for the transfer of the Shares to Holdco;
3.1.9.2. an exchange control approval from the Reserve Bank of Zimbabwe for the Reorganisation (“Exchange Control Approval”), ;
3.1.9.3. an approval by the Competition and Tariff Commission of Zimbabwe for the acquisition and transfer of Shares to Holdco; and
3.1.9.4. each of the Sellers and/or the Nominee Shareholders shall have delivered an opinionto Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate the transactions contemplated by this Agreement.
3.1.10 the Sellers having actively cooperated with the Buyer on satisfying applicable regulatory authority requirement(s) in the United States in respect of the subject transaction contemplated herein, dated the Closing Date, addressed including but not limited to the Purchaser issuance and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion obtainment of the Company’s General Counsel in form independent technical report(s);
3.1.11 with the assistance of the Sellers, the Beneficial Owners and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinionNominee Shareholders, the Company Counsel may rely to obtain the renewed investment licence to be issued by the Zimbabwe Investment and Development Agency (or relevant competent authority) and such licence remaining valid, effective and not revoked or expired on Completion; and
3.1.12 a written confirmation from the Sellers and the Nominee Shareholders confirming that they have been holding the relevant Shares as to factual matters upon certificates or other documents furnished by officers, directors nominees for and trustees on behalf of the CompanyBeneficial Owners, have consented to the transfer of the relevant Shares, and will fully cooperate in any transactions, perform any acts and sign any documents as requested by the Buyer as contemplated under this Agreement.
3.2 Each of the Buyer, the Guarantor Sellers and the Trust Beneficial Owners shall make all reasonable efforts to achieve satisfaction of each Condition as soon as possible before the Long Stop Date. If, despite such reasonable efforts, any of those Conditions have not been satisfied by the date agreed by the parties then each of such parties shall make all reasonable efforts to achieve satisfaction of those Conditions as soon as practicable after that date and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are event not experts in later than the law of Long Stop Date.
3.3 If, at any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitationtime, the Legal Opinion Accord Beneficial Owners, the Sellers or the Buyer becomes aware of a fact, matter or circumstance that might prevent a Condition from being satisfied, it shall immediately inform the ABA Section of Business Law (1991)other party in writing.
(d) The Purchaser shall have been furnished 3.4 At any time on or before the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Long Stop Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form Buyer may waive a Condition set out in Annex B heretoclause 3.1 by notice to the Sellers on any terms it decides.
(e) The Purchaser shall have received 3.5 At any time on or before the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Long Stop Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form Sellers may waive a Condition set out in Annex C heretoclauses 3.1.3 and 3.1.7 by notice to the Buyer on any terms they decide.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser 3.6 If a certificate of the Company, signed Condition has not been waived by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company Sellers or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the CompanyBuyer, as the case may be, pursuant to clause 3.4 or 3.5 or has not been satisfied by the Long Stop Date this Agreement shall automatically terminate with immediate effect. Each party's further rights and obligations cease immediately on termination, but termination does not affect a party's accrued rights and obligations at the date of termination. The Deposit and the First Instalment paid to the Sellers (or any other payment made by such trustee the Buyer pursuant to clause 2.5 of this Agreement) shall be returned in full to the Buyer within Ten (10) Business Days upon this Agreement being automatically terminated pursuant to this clause. Any costs or officer expenses incurred under the due diligence investigation and issuance of any technical reports in any individual capacityconnection with the transaction as contemplated herein shall be equally borne by the Sellers on one hand and the Buyer on the other hand.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (China Natural Resources Inc)
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [ReservedRESERVED.].
(c) Michael G. Costello, counsel for the Company and the Trust (the "Comp▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇▇ & "), ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall l have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, LaSalle Bank National Association, in substantially the form set out in Annex A-I hereto and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s 's General Counsel in form and substance satisfactory or a certificate signed by the Company's Chief Executive Officer, President, an Executive Vice President, Chief Financial Officer, Treasurer or Assistant Treasurer, dated the Closing Date, addressed to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to in substantially the Guarantor shall have delivered an opinion form set out in form and substance satisfactory to the PurchaserAnnex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s 's opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. If the Company Counsel is not admitted to practice in the State of New York, the opinion of the Company Counsel may assume, for purposes of the opinion, that the laws of the State of New York are substantively identical, in all respects material to the opinion, to the internal laws of the state in which such counsel is admitted to practice. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ Rowe & Maw LLP, special tax counsel for the Purchaser, dated the Closing Clos▇▇▇ Date, addressed to the Purchaser and JPMorgan Chase Bank, LaSalle Bank National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇Morris, ▇▇▇▇▇▇ James, Hitchens & Finger, P.A.Williams LLP, special Delaware counsel for the Delaware TrusteeTrust, dated the Closing DateClosi▇▇ ▇▇▇▇, addressed to the Purchaser, JPMorgan Chase Bank, LaSalle Bank National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ Morris, James, Hitchens & Williams LLP, special Delaware counsel for the Property Trustee, the ▇▇▇▇▇▇ LLP, special counsel for the Property ▇▇▇e Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇Morris, ▇▇▇▇▇▇ James, Hitchens & Finger, P.A.Williams LLP, special Delaware counsel for the Delaware Trustee, dated the Closing date▇ ▇▇▇ ▇▇osing Date, addressed to the Purchaser and JPMorgan Chase Bank, LaSalle Bank National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a an Executive Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, Trust have complied with all the agreements and satisfied all the conditions on its either of their part to be performed or satisfied at or prior to the Closing Date; and
(ii) since October 31, 2004 the date of the Interim Financial Statements (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a wholesubsidiaries, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)business.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor Company and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s 's judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s 's obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s 's counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor Trust and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Purchase Agreement (Meadowbrook Insurance Group Inc)
Conditions. The obligations This Amendment shall become effective only upon satisfaction in full of the parties under this Purchase Agreement are subject to the following conditionsconditions precedent:
(a) The representations Agent shall have received on or before the Second Amendment Closing Date the following, each in form and warranties contained herein substance satisfactory to Agent (and, where indicated, the applicable Lender) and, unless indicated otherwise, dated as of the Second Amendment Closing Date:
(i) counterparts of this Amendment, duly executed by the Borrowers and the Lender Group; and
(ii) such other agreements, instruments, approvals, opinions and other documents as Agent or any Lender may reasonably request.
(b) Agent shall have received from the Borrowers, for the benefit of the New Lender, the Term B Commitment Fee and the Term B Use Fee, which Term B Commitment Fee and the Term B Use Fee shall be accurate fully earned as of the date of delivery this Amendment; the parties hereto agree that the Term B Commitment Fee and the Term B Use Fee shall be paid from the proceeds of the Preferred Securities.
(b) [Reserved]Term B Loan.
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for The New Lender shall have received each of the Sellers Term B Equity Documents (the “Company Counsel”as defined in Section 4 below), shall have delivered an opinion, dated duly executed by each of the Closing Date, addressed to the Purchaser parties thereto and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; New Lender.
(iid) The several counsel to the Company members of the Lender Group shall have furnished received payment, in immediately available funds, of all accrued and unpaid attorneys fees and expenses constituting Lender Group Expenses incurred in connection with this Amendment and the transactions contemplated hereunder or reasonably ancillary hereto;
(e) The representations and warranties in this Amendment, the Loan Agreement as amended by this Amendment, and the other Loan Documents shall be true and correct in all respects on and as of the date hereof, as though made on such date (except to the Purchaser extent that such representations and warranties relate solely to an earlier date);
(f) No Default or Event of Default shall have occurred and be continuing on the opinion date hereof, nor shall result from the consummation of the Company’s General Counsel transactions contemplated herein;
(g) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein shall have been issued and remain in force by any governmental authority against Borrowers or the Lender Group; and
(h) All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered or executed or recorded and shall be in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company Agent and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)counsel.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the following conditions:
(a) The the execution and delivery of this Amendment by the Company, Guarantors, Agents, and each of the Lenders;
(b) the execution and delivery of the Fourth Amended and Restated Fee Letter by the Company and the Administrative Agent, and the payment of all fees required to be paid thereby on or prior to the Fifth Amendment Effective Date;
(c) the truth and accuracy of the representations and warranties contained herein in Section 4;
(d) Administrative Agent shall have received (i) sufficient copies of each Organizational Document executed and delivered by each Credit Party, as applicable, and, to the extent applicable, certified as of a recent date by the appropriate governmental official, for each Lender, each dated the Fifth Amendment Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers of each such Person executing the Fifth Amendment, the Fourth Amended and Restated Fee Letter or any other Credit Document executed in connection therewith (collectively, the “Fifth Amendment Documents”); (iii) resolutions of the Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of the Fifth Amendment Documents to which it is a party or by which it or its assets may be accurate bound as of the date of delivery Fifth Amendment Effective Date, certified as of the Preferred Securities.Fifth Amendment Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Fifth Amendment Effective Date; and (v) such other documents as Administrative Agent may reasonably request;
(be) [Reserved].each Credit Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Fifth Amendment Documents, and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to Administrative Agent;
(cf) ▇▇▇▇▇▇Administrative Agent and its counsel shall have received originally executed copies of the favorable written opinions of Winthrop & Weinstine, ▇▇▇▇P.A., counsel for Credit Parties, as to such matters as Administrative Agent may reasonably request, dated as of the Fifth Amendment Effective Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such counsel to deliver such opinions to Administrative Agent);
(g) Administrative Agent shall have received a Solvency Certificate from Company dated as of the Fifth Amendment Effective Date and addressed to Administrative Agent and Lenders, and in form, scope and substance satisfactory to Administrative Agent, with appropriate attachments and demonstrating that after giving effect to the transactions contemplated by the Fifth Amendment Documents to be consummated on the Fifth Amendment Effective Date, Company and its Subsidiaries are and will be Solvent;
(h) Administrative Agent shall have received and be satisfied with the scope of the ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers Engagement Letter; and
(the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (iii) the Company shall have furnished to the Purchaser the opinion paid all fees, costs and expenses of the Company’s General Counsel Agents in form connection with this Amendment and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinionsall transactions contemplated hereby, including, without limitation, the Legal Opinion Accord reasonable fees, costs and expenses of the ABA Section of Business Law (1991)Agents’ counsel.
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Speed Commerce, Inc.)
Conditions. The obligations effectiveness of this Agreement (including the obligation of the parties under this Purchase Agreement are Lender to make the Loan) is subject to the satisfaction of the following conditions:conditions (and, in the case of each document specified in this Section to be received by the Lender, such document shall be in form and substance satisfactory to the Lender in its sole discretion):
(a) The representations Administrative Agent and warranties contained herein the Lender shall have received from each party hereto counterparts (in such number as may be accurate requested by the Administrative Agent or the Lender, as applicable) of the date this Agreement signed on behalf of delivery of the Preferred Securitiessuch party.
(b) [Reserved]The Administrative Agent and the Lender shall have received from each party thereto duly executed counterparts (in such number as may be requested by the Administrative Agent or the Lender, as applicable) of the Collateral Documents and, except in cases where no signature is required, the other Collateral Documents together with any other documents, and instruments required to perfect or evidence the Lender’s first priority security interest in and liens on the Collateral (including, without limitation, all applicable certificates evidencing pledged capital stock, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all real property (including oil and gas property) mortgages to be filed in the applicable government mortgage filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable, and all deposit account and securities account control agreements) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing. In connection with the execution and delivery of the Collateral Documents and other documents described above, the Lender shall be reasonably satisfied that the Collateral Documents create first priority Liens that may be perfected upon recordation of properly completed financing statements and the Collateral Documents in the appropriate filing offices therefor (except Liens permitted by Section 6.03 may exist).
(c) ▇▇▇▇▇▇The Administrative Agent and the Lender shall have received copies of all material regulatory, ▇governmental, third party and other approvals, acknowledgements, directions, consents and agreements required as of the Closing Date hereof in order for each Credit Party to enter into the Financing Documents to which it is a party and perform their respective obligations thereunder and for the consummation of the transactions contemplated under the Financing Documents.
(d) The Administrative Agent and the Lender shall have received a certificate of a Responsible Officer of each Credit Party setting forth (i) resolutions of its board of directors or other appropriate governing body with respect to the authorization of such Credit Party, as applicable, to execute and deliver the Financing Documents to which it is a party and to enter into the Transactions, (ii) the officers of such Credit Party, as applicable, (x) who are authorized to sign the Financing Documents to which such Credit Party, as applicable, is a party and (y) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the transactions contemplated hereby, (iii) specimen or genuine signatures of such authorized officers, and (iv) the articles or certificate of incorporation and by-laws or other applicable Organizational Documents of such Credit Party, as applicable, certified as being true and complete.
(e) The Administrative Agent and the Lender shall have received certificates of the appropriate state agencies, as requested by the Lender, with respect to the existence, qualification and good standing of each Credit Party in each jurisdiction where any such Credit Party is organized or qualified to do business.
(f) The Lender shall have received a Solvency Certificate from the Borrower in form and substance reasonably satisfactory to the Lender.
(g) The Administrative Agent and the Lender shall have received a certificate of a Responsible Officer of the Borrower in form and substance reasonably satisfactory to the Lender certifying that (i) all representations and warranties of the Credit Parties set forth in this Agreement are true and correct in all material respects (unless already qualified by materiality in which case such applicable representation and warranty shall be true and correct in all respects) and (ii) no Default or Event of Default exists.
(h) The Administrative Agent and the Lender shall have received a Notice of Borrowing.
(i) The Lender shall have received a pro forma balance sheet of the Borrower after giving effect to the Transactions (it being understood and agreed that this clause (i) shall be deemed satisfied by the inclusion in a registration statement on Form S-4 or a proxy statement for Flame Acquisition Corp. filed with the SEC).
(j) No later five (5) Business Days prior to the Closing Date, each of the Administrative Agent and the Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act.
(i) The PSA is in full force and effect and the “Closing” thereunder shall be consummated simultaneously with the Closing Date in accordance with the terms described in the PSA, and (ii) the Plains PSA is in full force and effect and the “Closing” thereunder shall be consummated prior to, or substantially simultaneously with, the Closing Date in accordance with the terms described in the Plains PSA.
(l) All fees, costs and expenses (including legal fees) payable to or on behalf of the Lender or the Administrative Agent that are due and payable on the Closing Date to the extent invoiced at least two (2) Business Days prior to the Closing Date, shall have been received.
(m) The Administrative Agent, for the benefit of the Secured Parties, shall have received customary legal opinions from ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, LLP as New York special legal counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) Borrower and (ii) below and, in the case of the TrustStoel Rives LLP, as to (i) belowCalifornia special legal counsel for the Borrower.
(in) the No Default or Event of Default shall have occurred and be continuing.
(o) All representations and warranties made by any Credit Party contained herein or in this Purchase Agreement are the other Financing Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the Closing Date with the same effect (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as if made on the Closing Date, and the Company and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”such earlier date).
(ip) Subsequent The Lender shall have received evidence reasonably satisfactory to it that the execution of this Purchase Agreement, there shall Borrower and its Subsidiaries have cash and Cash Equivalents that would not have been any change, or any development involving appear as “restricted” on a prospective change, in or affecting the condition (financial or other), earnings, business or assets consolidated balance sheet of the Guarantor and its subsidiaries, taken as a whole whether or Borrower of not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiesless than One Hundred Fifty Million Dollars ($150,000,000).
(jq) Prior to the Closing Date, the Company and the Trust The Lender shall have furnished to the Purchaser and its counsel received such further information, certificates and other documents as the Purchaser or Lender may request in its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitysole discretion.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Sable Offshore Corp.)
Conditions. The obligations transactions contemplated by Sections 1.02, 1.03, 1.04 and 1.05 shall become effective only upon the satisfaction, on a single date (which shall be the Effective Date) on or prior to March 31, 1995, of the parties under following conditions (capitalized terms used in this Purchase Agreement are subject Section III and not otherwise defined herein shall have the meanings assigned to them in the following conditions:Amended and Restated Credit Agreement):
(a) The representations and warranties contained herein all the payments referred to in Section 1.06 shall be accurate as of the date of delivery of the Preferred Securities.have been made;
(b) [Reserved].each Continuing Lender shall have received a duly executed Note, if requested by such Continuing Lender, in respect of each Credit Facility under which it has a Commitment, complying with the provisions of Section 2.06 of the Amended and Restated Credit Agreement; provided that the receipt of executed Swingline Notes by the Swingline Lender requesting Swingline Notes shall not be a condition to the effectiveness of this Agreement or to the obligation of any Continuing Lender to make Loans (other than Swingline Loans to be evidenced thereby);
(c) the Agent shall have received, on behalf of the Lenders, legal opinions from each of Debevoise & Plimpton, counsel ▇▇ ▇▇▇ ▇▇▇▇redit Parties, Richard A. Kalaher, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇eral Counsel of ASI, and such foreign counsel to ASI and the Subsidiary Borrowers and other counsel as shall have been requested by the Agent, each such opinion to be dated the Effective Date and addressed to the Issuing Banks, the Administrative Agent and the Lenders, as to such matters as the Agent may reasonably request, and the Borrowers hereby instruct each such counsel to deliver such opinions;
(d) the representations and warranties set forth in Article III of the Amended and Restated Credit Agreement and in each Credit Document shall be true and correct in all material respects on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date;
(e) all legal matters incidental to this Agreement, the Amended and Restated Credit Agreement, the Borrowings thereunder, the Credit Documents and the Transactions shall be satisfactory to the Lenders and to Cravath, Swaine & Moore, counsel for ▇▇▇ LLPAgent;
(f) the Agent shall have received, special counsel for on behalf of the Property Trustee and Lenders, (i) in the Indenture Trusteecase of any Credit Party of which the certificate or articles of incorporation (or other analogous document) has been changed since June 1, dated 1993, a copy of the Closing Datecertificate or articles of incorporation (or other analogous document), addressed including all amendments thereto, of such Credit Party, certified (where reasonably available, in the case of any Credit Party organized outside the United States) as of a recent date by the Secretary of State (or other appropriate Governmental Authority) of the state (or country) of its organization, or other evidence reasonably satisfactory to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed Agent as to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
organization of such Credit Party; (hii) The Company shall have furnished a certificate as to the Purchaser good standing or subsistence (or other analogous certification), to the extent available, of each of the Credit Parties as of a recent date, from the appropriate Secretary of State (or other appropriate Governmental Authority) or other evidence reasonably satisfactory to the Agent as to the good standing of such Credit Party; (iii) a certificate of the CompanySecretary or Assistant Secretary (or other Responsible Officer, signed in the case of Credit Parties that do not have a Secretary or an Assistant Secretary) of each Credit Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws (or other analogous documents to the extent available) of such Credit Party as in effect on the Effective Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Chief Executive OfficerBoard of Directors of such Credit Party (and, President if necessary, resolutions duly adopted by the shareholders or a Vice Presidentother equity owners of such Credit Party) authorizing the execution, delivery and Chief Financial Officer, Treasurer or Assistant Treasurer performance of the Company, Amended and Restated Credit Agreement and the Trust shall have furnished Credit Documents to the Purchaser which such Credit Party is or is to be a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, party and, in the case of the CompanyBorrowers, as the Borrowings, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation (or analogous documents) of such Credit Party have not been amended since the date of the last amendment thereto shown on the certificate (or other analogous certification or such other evidence reasonably satisfactory to the Agent) furnished pursuant to clause (i) above or, if no such certificate is required to be furnished under (i) above, since June 1, 1993, and (iiD) below andas to the incumbency and specimen signature of each officer executing the Amended and Restated Credit Agreement, any Credit Document or any other document delivered in connection herewith on behalf of such Credit Party; (iv) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (iii) above; and (v) such other documents as the Lenders, the Issuing Banks or Cravath, Swaine & Moore, counsel for ▇▇▇ Agent, may reasonably request;
(g) the Agent shall have received, on behalf of the Lenders, an Officer's Certificate of ASI, dated the Effective Date, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Amended and Restated Credit Agreement insofar as such conditions precedent relate to ASI and its Subsidiaries;
(h) the Agent shall have received all Fees and other amounts due and payable on or prior to the Effective Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by any of the Borrowers hereunder or under any Credit Document (to the extent invoices and statements therefor have been received);
(i) the Security Documents and the Guarantee Documents shall be in full force and effect on the Effective Date. The Collateral Agent on behalf of the holders of the Obligations shall have a security interest in the Collateral of the type and priority described in each Security Document, perfected to the extent contemplated by Section 3.09 of the Amended and Restated Credit Agreement;
(j) the Agent shall have received, on behalf of the Lenders, a satisfactory Perfection Certificate dated the Effective Date from ASI, demonstrating the perfection, to the extent contemplated by Section 3.09 of the Amended and Restated Credit Agreement, of the Liens granted under the Security Documents;
(k) the Offering shall have occurred (or shall occur contemporaneously with the initial Borrowings under the Amended and Restated Credit Agreement) on the terms and conditions disclosed to the Lenders prior to execution and delivery of this Agreement (or other terms and conditions approved by the Lenders). The Agent shall have received, on behalf of the Lenders, copies of all documentation executed and delivered in connection with the Offering;
(l) the Lenders shall have received a satisfactory pro forma consolidated balance sheet for ASI, reflecting the Transactions, and a satisfactory statement of sources and uses of funds in connection with the Transactions, in each case certified by a Financial Officer of ASI;
(m) after giving effect to all Borrowings made on the Effective Date, the Total Revolving Credit Commitment will exceed the aggregate outstanding principal amount of Revolving Credit Loans and Swingline Loans by an amount that equals or exceeds $150,000,000 (adjusted as necessary to take account of exchange rate fluctuations occurring after the delivery of the Funding Memorandum);
(n) ASI shall have taken all actions, if any, necessary to designate its liabilities in respect of the Obligations as senior indebtedness for purposes of the subordination provisions of its subordinated indebtedness (including, in the case of ASI, the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing DateSubordinated Securities), and the Company Obligations shall constitute senior indebtedness for such purposes;
(o) the Agent shall have received, on behalf of the Lenders, a report from ASI's independent insurance broker, together with any other evidence reasonably requested by the Lenders, demonstrating that the insurance described in Schedule 3.20 of the Amended and Restated Credit Agreement is in effect;
(p) except as contemplated by the Trust, Transactions and as applicable, have complied with all otherwise disclosed to the agreements and satisfied all the conditions on its part to be performed or satisfied at or Lenders prior to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company execution and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution delivery of this Purchase Agreement and the Amended and Restated Credit Agreement, there shall not have occurred any Prepayment Event or any other material change in the capitalization or corporate structure of Holding or the Borrowers since the date of the most recent balance sheet referred to in Section 3.08 of the Amended and Restated Credit Agreement;
(q) the Transactions, including the extensions of credit (and in particular the incurrence of the Loans and the issuance of the Letters of Credit) under the Amended and Restated Credit Agreement, the continuance of the Liens created by the Security Documents and the consummation of the Offering, shall have been approved or exempted by all requisite Governmental Authorities, and all such approvals or exemptions, including any changeconditions imposed thereby, shall be in form and substance acceptable to the Lenders. No action shall have been taken by any Governmental Authority which restrains or prevents or seeks to restrain or prevent, or imposes or seeks to impose materially adverse conditions upon, any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiariesTransactions;
(r) no action, taken as a whole whether suit, litigation or not occurring similar proceeding at law or in the ordinary course of business, the effect of which isequity or by or before any court or other Governmental Authority shall exist or, in the Purchaser’s judgmentcase of litigation by a Governmental Authority, so material and adverse as be threatened, with respect to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified Transactions which would in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any the reasonable opinion of the opinionsLenders be likely to result in a Materially Adverse Effect;
(s) all aspects of the structure and documentation of the Transactions and all corporate and other proceedings taken or to be taken in connection therewith and all documents incidental thereto, certificates and documents mentioned above or elsewhere in this Purchase Agreement each case to the extent not otherwise provided for herein, shall not be reasonably satisfactory in form and substance to the Purchaser or its counselAgent and to Cravath, this Purchase Swaine & Moore, counsel for ▇▇▇ Agent, and the Lenders shall have received copies of all such documents as the Lenders may reasonably request; and
(t) the Agent shall have received, on behalf of the Lenders, the duly executed Credit Documents Amendment Agreement referred to in Schedule 1.03 executed by each person which is a party to any Credit Document. Satisfaction of the foregoing conditions shall be conclusively evidenced by (i) receipts executed and all the Purchaser’s obligations hereunder may be canceled at the Closing Date delivered by the Purchaser. Notice of such cancellation shall be given to Agent and ASI, in the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee case of the Trust or any officer condition set forth in clause (a) above and (ii) the making of the Company or payments described in Section 1.06 on the Guarantor Effective Date, in the case of the conditions set forth in clauses (b) through (t) above; provided that execution and delivered delivery of the receipts referred to in clause (i) above shall not affect the Purchaser or the Purchaser’s counsel in connection with the Operative Documents rights of any party hereto to receive amounts due and payable to it and not actually received by such party. Unless and until the transactions contemplated hereby by Sections 1.02, 1.03, 1.04 and thereby 1.05 become effective as provided above, the Credit Documents shall be deemed to be a representation remain in full force and warranty effect in accordance with their respective terms and the rights and obligations of the Trust, the Guarantor and/or the Company, as the case may be, and parties thereto shall not by such trustee or officer in any individual capacitybe affected hereby.
Appears in 1 contract
Sources: Assignment and Amendment Agreement (American Standard Companies Inc)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are shall be subject to fulfillment of the following conditions:
(a) The representations and warranties contained herein Agent shall be accurate as of have received on the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Associationhereof, in form and substance satisfactory to the Purchaser; Agent, the following:
(i) a fully-executed original of this Agreement;
(ii) a fully executed original of the Company shall have furnished LJH Intercreditor Agreement (as redefined herein);
(iii) the payment of a $40,000 amendment fee to the Purchaser the opinion Agent;
(iv) evidence of the Company’s General Counsel payment of all fees and amounts set forth in Exhibit G attached hereto;
(v) a copy of an amendment, waiver and consent executed by the required lenders under the Citicorp Loan Agreement (the "Citicorp Amendment"), in form and substance satisfactory to the PurchaserAgent, and all documents required to be delivered prior to the effectiveness of the Citicorp Amendment; and
(vi) a fully executed copy of each of the LJH Note Documents;
(vii) a certificate of the Secretary or an Assistant Secretary of each of the Lessee and each Guarantor, in such form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of the Board of Directors of Lessee or such Guarantor (as the case may be) duly authorizing the execution, delivery and performance by Lessee or such Guarantor (as the case may be) of this Amendment and each of the other Operative Agreements delivered in connection with this Amendment to which such Lessee or Guarantor is or will be a party, (B) the fact that neither its certificate of incorporation nor its bylaws have been changed from the versions that were certified and delivered to the Agent on the Initial Closing Date (or if the certificate of incorporation has been changed, such certificate of incorporation certified as of a recent date by the Secretary of State of the State of its incorporation or, if the by-laws have been changed, such by-laws certified by the secretary of the Lessee or the applicable Guarantor), and (iiiC) Irvine Law Groupthe incumbency and signature of persons authorized to execute and deliver on its behalf this Amendment and each of the other Operative Agreements delivered in connection with this Amendment to which such Lessee or Guarantor is a party;
(viii) all agreements, P.C., special tax counsel documents and instruments delivered to the Guarantor shall have obligees under the BofA Note and the guaranties executed and delivered an opinion in connection therewith as a result of the LJH Note Documents or this Agreement, in form and substance satisfactory the Agent;
(ix) the annual report, financial statements, report of KPMG Peat Marwick LLP and other reports for Fiscal Year ended December 31, 2002 required to be delivered pursuant to Section 28.1.1 of the Lease Agreement (after giving effect to the Purchaser. In rendering their opinionwaiver with respect thereto in Section 4(b) above);
(x) any additional agreements, instruments or documents which it may reasonably request in connection herewith;
(b) The correctness in all material respects of the representations and warranties of the Owner Trustee, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors Construction Agent and trustees the Lessee contained herein and in each of the Company, the Guarantor and the Trust and by government officials Operative Agreements;
(provided, however, that copies of any such certificates or documents are delivered to the Purchaserc) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts No material adverse change shall have occurred in the law business, assets, management, operations, financial condition or prospects of Aviation Sales or any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed Guarantor or qualified byany Subsidiary of Aviation Sales since December 31, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).2002;
(d) The Purchaser Since December 31, 2002, no permit, agreement, lease, or license which, in the judgment of the Agent, is material to the business, operations or employee relations of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales, shall have been furnished terminated, modified, revoked, breached, or declared to be in default, or if breached or declared to be in default during such period, such breach or default shall have been cured or waived on terms satisfactory to the opinion Agent and Lenders;
(e) None of Mayerthe members of Aviation Sales' Board of Directors as of December 31, Brown, 2000 (except ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee ▇▇▇▇▇ and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP▇), special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, ceased acting as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice members of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee Board of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityDirectors.
Appears in 1 contract
Conditions. The obligations agreement set out in Clause 1 of this Second Supplemental Letter, shall become effective on the date all the following conditions are either satisfied or, as the case may be in respect of certain conditions, waived (such date being the “Second Effective Date”):
3.1 the Borrower, the Existing Owners, the New Ship Owners and the Approved Manager hereby declare and acknowledge that as at the date hereof the outstanding principal amount of the parties Facility is Thirty Six Million Three Hundred and Seventy Five Thousand Dollars ($36,375,000) and further confirm their obligations under this Purchase Agreement the Finance Documents to which they are subject a party and their agreement to the following conditionsarrangements of this Second Supplemental Letter by accepting and counter-signing this Second Supplemental Letter by a duly authorised signatory or (as the case may be) by a director acceptable to us in all respects;
3.2 on or before the date of signing of this Second Supplemental Letter the Borrower deliver to us in form and substance as may be approved or required by us:
(a) The representations and warranties contained herein shall be accurate as a recent certificate of good standing in relation to each of the date of delivery Borrower, each Existing Owner, each New Ship Owner and the Approved Manager issued by the relevant authorities of the Preferred Securities.country of its incorporation and a recent certificate of the Ministry of Shipping and Insular’s Policy, certifying the due establishment of an office in Greece of the Approved Manager and its good standing;
(b) [Reserved].an original certificate of a duly authorised officer of the Borrower, each Existing Owner, each New Ship Owner and the Approved Manager, certifying that none of the documents delivered to us pursuant to the Principal Agreement has been amended or modified in any way since the date of their delivery and remains correct, complete and in full force and effect, or copies, certified by a duly authorized officer of each of the above parties as true, complete, accurate and neither amended nor revoked, of any which have been amended or modified;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for originals of duly legalised resolutions of the Sellers (directors of the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed Borrower evidencing approval to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion variation of the Company’s General Counsel in form Principal Agreement pursuant to this Second Supplemental Letter and substance satisfactory the execution of same and all documents contemplated hereby to which it is a party and authorising appropriate officers or attorneys to execute the Purchaser; same and (iii) Irvine Law Groupto sign any other documents, P.C.notices, special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates letters or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are communications required to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy given by it pursuant hereto and thereto or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord evidence of the ABA Section of Business Law (1991).such approvals and authorisations
(d) The Purchaser shall have been furnished original of any power of attorney under which any of the opinion documents referred to at (c) above is executed on behalf of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.Borrower;
(e) The Purchaser shall have received a first priority deed of pledge over the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.Reserve Account;
(f) The Purchaser shall have received copies of all governmental and other consents, licences, approvals and authorisations as may be necessary to authorise the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for performance by the Property Trustee Borrower and the Indenture Trusteeother Obligors of their obligations under this Second Supplemental Letter and all documents contemplated hereby to which each of them is a party and the execution, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.validity and enforceability of this Second Supplemental Letter and all documents contemplated hereby;
(g) The Purchaser shall have received evidence that each Mortgaged Ship is definitively and permanently registered in the opinion absolute and unencumbered ownership of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel the relevant Owner under the Approved Flag save for the Delaware Trusteerelevant Mortgage in our favour, dated remains insured in accordance with the Closing Date, addressed respective terms of the Finance Documents and that such insurances have been assigned to us and continues to trade in full compliance with all applicable laws and managed by the Approved Manager pursuant to the Purchaser and JPMorgan Chase Bank, National Association, in substantially terms of the form set out in Annex E hereto.relevant management agreement;
(h) The Company shall have furnished to evidence that each Owner and the Purchaser a certificate Approved Manager are in current compliance with the requirements of the Company, signed International Management Code for the Safe Operation of Ships and for Pollution Prevention (as adopted by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of International Maritime Organisation as Resolution A.741 (18) (the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.“ISM Code”);
(i) evidence that each Owner and the representations and warranties Approved Manager are in this Purchase Agreement are true and correct on and as current compliance with the provisions of the Closing Date with the same effect as if made on the Closing Date, International Ship and Port Facilities Security (ISPS) Code and the Company other respective amendments of SOLAS and will maintain at all times throughout the Trust, as applicable, have complied Facility Period a valid International Ship Security Certificate (ISSC) in respect of each Ship and all other valid certificates evidencing compliance with this sub-clause;
(j) updated class maintenance certificate or survey status issued by the classification society of each Ship which will be at all the agreements and satisfied all the conditions on its part terms satisfactory to be performed or satisfied at or prior to the Closing Dateus; and
(iik) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel favourable legal opinion in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty due execution an enforceability of the Trust, Account Pledge on the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.Reserve Account;
Appears in 1 contract
Sources: Facility Agreement (Euroseas Ltd.)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment No. 2 shall be subject to the following conditions:fulfillment by the Borrowers, in a manner satisfactory to the Administrative Agent and the Lender Parties, of all of the conditions precedent set forth in this Article IV, and the date on which all such conditions shall have been fulfilled to the satisfaction of the Administrative Agent and the Lender Parties, and this Amendment No. 2 shall have become effective, shall be herein called the "Effective Date".
(a) The representations and warranties contained herein and each other agreement, instrument, certificate or other writing delivered to the Administrative Agent or any Lender Party pursuant hereto or to the Credit Agreement shall be accurate correct on and as of the date hereof after giving effect to this Amendment No. 2 as though made on and as of such date, (b) no Default or Event of Default shall have occurred and be continuing on the Effective Date (after giving effect to the consent set forth in Article II hereof) or would result from the taking effect of this Amendment No. 2, or the transactions contemplated hereby, and (c) all of the conditions precedent to the effectiveness of this Amendment No. 2 shall have been satisfied; and the execution and delivery of this Amendment No. 2 constitutes the Preferred SecuritiesBorrowers' certification to the Lender Parties and the Administrative Agent as to the truth, accuracy and completeness of the matters set forth in this Section 4.1.
4.2 The Administrative Agent shall have received copies of agreements and instruments, satisfactory in form and substance to the Administrative Agent, evidencing the extension of the maturity date of the Huntingdon Financing Debt to at least January 15, 2004 in the case of the $2,500,000 note and the $500,000 note (both comprising the Huntingdon Financing Debt) and extension of the maturity date of the Huntingdon Secured Subordinated Debt to at least April 15, 2004, and, if applicable, any other subordinated debt owed by any of the Borrowers or Guarantors, certified as true and complete by a responsible officer of the Borrowers.
(a) The Administrative Agent shall have received certified copies of all agreements and instruments, satisfactory in form and substance to the Administrative Agent, evidencing the issuance of the Huntingdon October 2002 Debt referred to in Section 6.2(c)(x) of the Credit Agreement as amended hereby.
(b) [Reserved]The Administrative Agent shall have received satisfactory evidence of the Borrower's receipt of at least $1,000,000 in cash as net proceeds of the (initial) issuance of Huntingdon October 2002 Debt.
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for The Lenders and lenders of the Sellers (the “Company Counsel”), Huntingdon October 2002 Debt and all other applicable parties shall have delivered an opinion, executed the Huntingdon October 2002 Debt Intercreditor Agreement dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, date hereof in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)Required Lenders.
(d) The Purchaser Administrative Agent shall have been furnished received evidence that the opinion holders of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed all outstanding Senior Subordinated Debt have consented to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B heretoHuntingdon October 2002 Debt.
(e) The Purchaser Administrative Agent shall have received a certificate of the opinion Secretary or an assistant secretary of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Huntingdon certifying the Delaware Trustee, dated names and true signatures of the Closing Date, addressed officers of Huntingdon authorized to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee sign each Loan Document to which it is a party and the Company, in substantially the form set out in Annex C heretoother documents to be delivered hereunder and thereunder.
(f) All governmental and third party consents and approvals necessary in connection with any aspect of the Huntingdon October 2002 Debt (other than any consent to the issuance of the stock of MediaBay which shall be issuable from the convertible debt pursuant to the terms of the Huntingdon October 2002 Documents and which by the terms of the Huntingdon October 2002 Debt Documents may be issued only following receipt of any required consent) shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect; all applicable waiting periods shall have expired without any adverse action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon any aspect of the Facilities.
4.4 The Purchaser Administrative Agent shall have received copies of resolutions adopted by the opinion Borrowers' boards of Gardere ▇▇▇▇directors, certified by an authorized officer thereof authorizing the execution, delivery and performance of the Amendment No. 2 Documents, the Huntingdon October 2002 Debt Documents and amendments to subordinated debt documents, and an incumbency certificate relating to each of the Borrowers, and all documents incidental thereto shall be satisfactory to the Administrative Agent, the Lender Parties and their counsel, and each such person shall have received all such information and such counterpart originals or certified copies of documents as may have been reasonably requested.
4.5 The Borrowers shall have:
(a) paid a non-refundable amendment fee in an amount equal to $45,000.00 to the Administrative Agent, for the pro rata account of each Lender that timely executes and delivers its signature page evidencing its agreement to this Amendment, with the first installment in the amount of $22,500.00 payable on the date of this Amendment and the second installment of $22,500.00 payable on the date that is thirty days after the date hereof;
(b) paid to Winston & Strawn, counsel to the Administrative Agent, all outstanding fees an▇ ▇▇▇▇▇▇ LLPnses incurred in connection with this Amendment No. 2 or otherwise, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed including any fees incurred to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate comply with Revised Article 9 of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateUCC; and
(iic) since October 31otherwise complied in all respects with the terms hereof and of any other agreement, 2004 (as defined below)document, there has been no material adverse change instrument or other writing to be delivered by any Borrower in the condition (financial or other), earnings, business or assets connection herewith.
4.6 Each of the Company parties hereto shall have executed and its subsidiaries taken as a whole, whether or not arising from transactions occurring in delivered this Amendment No. 2 to the ordinary course of business (a “Material Adverse Change”)Administrative Agent.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel 4.7 All proceedings in connection with the Operative Documents and the transactions contemplated hereby by this Amendment No. 2 and thereby all documents incidental thereto shall be deemed reasonably satisfactory to be a representation and warranty of the TrustAdministrative Agent, the Guarantor and/or the Company, as the case may beLender Parties and their respective counsel, and not by each such trustee Person shall have received all such information and such counterpart originals or officer in any individual capacitycertified copies of documents as may have been reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Mediabay Inc)
Conditions. 9.01 The obligations obligation of the parties under this Purchase Agreement are Lenders to make the COMMITMENT AVAILABLE shall be subject to the following conditions:
(a) The representations and warranties contained herein shall be accurate as of condition that the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇Agent, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”)or its duly authorised representative, shall have delivered received no later than SEVEN (7) BANKING DAYS before the day on which the FIRST DRAWDOWN NOTICE for an opinionAdvance is given, dated the Closing Date, addressed documents and evidence specified in PART 1 OF SCHEDULE 3 in form and substance satisfactory to the Purchaser Agent.
9.02 The obligation of the Lenders to make EACH SUBSEQUENT ADVANCE other than the Advance on the Delivery Date shall be subject to the condition that the Agent, or its duly authorised representative, shall have received no later than the DATE ON WHICH THE DRAWDOWN NOTICE FOR SUCH ADVANCE IS GIVEN, the documents and JPMorgan Chase Bank, National Associationevidence specified in PART 2 OF SCHEDULE 3, in form and substance satisfactory to the Purchaser; (ii) Agent.
9.03 The obligation of the Company Lenders to make the ADVANCE ON THE DELIVERY DATE available or to maintain the Loan on or after the Delivery Date, shall be subject to the condition that the Agent, or its duly authorised representative, shall have furnished to received NO LATER THAN THE DATE ON WHICH THE DRAWDOWN NOTICE for such Advance is given, the Purchaser the opinion of the Company’s General Counsel documents and evidence specified in PART 3 OF SCHEDULE 3, in form and substance satisfactory to the Purchaser; and (iii) Irvine Law GroupAgent.
9.04 The obligation of the Lenders to make the ADVANCE ON THE DELIVERY DATE available or to maintain the Loan on or after the Delivery Date, P.C., special tax counsel shall be subject to the Guarantor condition that the Agent, or its duly authorised representative, shall have delivered an opinion received ON OR PRIOR TO THE DELIVERY DATE the documents and evidence specified in PART 4 OF SCHEDULE 3 in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Agent.
9.05 The obligation of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of Lenders to make any such certificates or documents are delivered Advance is subject to the Purchaser) further condition that at the time of giving each Drawdown Notice for, and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for at the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord time of the ABA Section of Business Law (1991).making of, each Advance:
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(ia) the representations and warranties set out in Clauses 7.01 and 7.02 (and so that the representation and warranty in Clause 7.01 (f) shall for this Purchase Agreement purpose refer to the then latest audited financial statements delivered to the Agent under Clause 8.01 (e)) are true and correct on and as of the Closing Date with the same effect each such time as if each was made on the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior respect to the Closing Datefacts and circumstances existing at such time; and
(iib) since October 31, 2004 (as defined below), there has been no material adverse change in Default shall have occurred and be continuing or would result from the condition (financial or other), earnings, business or assets making of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Advance.
9.06 Not later than seven (i7) Subsequent Banking Days prior to the execution of this Purchase Agreement, there shall not have been date on which any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed Advance is to be a representation and warranty of the Trust, the Guarantor and/or the Companydrawndown or, as the case may be, each Interest Payment Date, the Agent may request and the Borrower shall, not later than two (2) Banking Days prior to such date if it is practicable to do so, or otherwise (with the consent of the Agent) as soon as possible thereafter, deliver to the Agent on such request further information as to any or all of the matters which are the subject of Clauses 7, 8, 9 and 10.
9.07 The conditions precedent set out in this Clause 9 are inserted for the sole benefit of the Lenders, and may be waived on their behalf in whole or in part and with or without conditions by the Lenders on or before the relevant Drawdown Date without prejudicing the right of the Agent acting on instructions from the Lenders to require fulfilment of such trustee conditions in whole or officer in part at any individual capacitytime thereafter.
Appears in 1 contract
Conditions. The obligations An Incremental Commitment shall become effective as of the parties under this Purchase Agreement are subject to the following conditionsIncrease Effective Date; provided that:
(ai) The after giving pro forma effect to such Incremental Commitment and the use of proceeds, no Default shall exist;
(ii) the Borrower shall have delivered to the Administrative Agent a certificate dated as of the Increase Effective Date signed by a Responsible Officer of the Borrower (x) (A) certifying and attaching the resolutions adopted by or on behalf of the Borrower and each Guarantor (if any) approving or consenting to such increase, or (B) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Restatement Effective Date (which resolutions include approval to increase the aggregate principal amount of the Facilities to an amount at least equal to $900,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption, and (y) certifying that, before and after giving effect to such Incremental Commitments and the Credit Extensions, if any to be made on such Increase Effective Date (A) the representations and warranties contained herein shall be accurate in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection therewith, are true and correct in all material respects on and as of the Increase Effective Date (without duplication of materiality qualifiers set forth in such representations and warranties), except (1) with respect to the representations and warranties set forth in Sections 5.15(b) and 5.19, in which case they are true and correct in all respects, (2) to the extent that such representations and warranties expressly relate to an earlier date (in which case such representations and warranties are true and correct in all material respects (or, in the case of delivery Sections 5.15(b) and 5.19 in all respects) on and as of such earlier date, without duplication of materiality qualifiers set forth in such representations and warranties) and (3) that for purposes of this Section 2.15, the Preferred Securities.
representations and warranties contained in subsections (a) and (b) [Reserved].of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists;
(ciii) ▇▇▇▇▇▇if requested by a new Lender participating in such Incremental Commitment, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for notes executed by the Sellers Borrower payable to such new Lender;
(iv) the “Company Counsel”), Administrative Agent shall have delivered an opinion, dated received documentation from each Person providing such Incremental Commitment evidencing its share of the Closing Date, addressed Incremental Commitments and its obligations under this Agreement in form and substance reasonably acceptable to the Purchaser Administrative Agent, including, in the case of a new Lender, a New Lender Joinder Agreement, subject in each case to any requisite consents required under Section 11.06;
(v) the Borrower shall pay any applicable fees and JPMorgan Chase Bankexpenses as are due and payable in connection with such Incremental Commitment;
(vi) the Borrower shall make any breakage payments in connection with any adjustment of Revolving Credit Loans pursuant to Section 2.15(d);
(vii) if requested by the Administrative Agent or any Lender or other Eligible Assignee participating in such Incremental Commitment, National Associationthe Administrative Agent shall have received, in form and substance reasonably satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the Administrative Agent, a customary opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor Loan Parties (which counsel shall have delivered an opinion in form and substance satisfactory be reasonably acceptable to the Purchaser. In rendering their opinionAdministrative Agent), addressed to the Administrative Agent, the Company Counsel Lenders and the L/C Issuers;
(viii) to the extent reasonably requested by the Administrative Agent or any Lender participating in such Incremental Commitment at least ten (10) days prior to such Increase Effective Date, receipt by the Administrative Agent or such Lender, as applicable, of all necessary information in connection with the USA PATRIOT Act, “know your customer” requirements, anti-money laundering requirements and the Beneficial Ownership Regulation (including a Beneficial Ownership Certification) and other customary requirements not later than five (5) days prior to such Increase Effective Date;
(ix) any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may rely as to factual matters upon certificates or other documents furnished by officers, directors reasonably request and trustees (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the CompanyUnited States of America, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered provide to the Purchaser) and by and upon Administrative Agent, its name, address, tax identification number and/or such other documents information as such counsel may, in their reasonable opinion, deem appropriate as a basis shall be necessary for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted Administrative Agent to practice comply with “know your customer” and that they are not admitted to practice in any other jurisdiction anti-money laundering rules and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified byregulations, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, including without limitation, the Legal Opinion Accord USA PATRIOT Act; and
(x) the Borrower shall have delivered or caused to be delivered such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President Lenders or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, andother Eligible Assignees providing such Incremental Commitment or, in the case of the Companyan Incremental Revolving Commitment, as to (i) and (ii) below andany L/C Issuer, in the case of the Trust, as to (i) belowreasonably may require.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the satisfaction of the following conditionsconditions precedent:
(a) The representations and warranties contained herein Lender shall have received each of the following, which, in the case of documents, shall be accurate as of dated (unless otherwise indicated) the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Associationthis Amendment, in form and substance satisfactory to the Purchaser; Lender:
(i) this Amendment executed by the Borrower and the Lender;
(ii) the Company shall have furnished Term Note executed by the Borrower and payable to the Purchaser the opinion order of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and Lender;
(iii) Irvine Law GroupResolutions of the Board of Directors of the Borrower certified by its Secretary or Assistant Secretary which authorize the execution, P.C.delivery, special tax counsel to and performance by the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinionBorrower of this Amendment, the Company Counsel may rely as to factual matters upon certificates Term Note, and other Loan Documents executed in connection herewith;
(iv) Resolutions of the Board of Directors of each Domestic Subsidiary certified by each of its respective Secretaries or Assistant Secretaries which authorize the execution, delivery, and performance by each Domestic Subsidiary of this Amendment, and other Loan Documents executed in connection herewith;
(v) All reasonable costs and expenses incurred by Lender in connection with the preparation, negotiation, and execution of this Amendment and any other documents furnished by officersexecuted pursuant hereto, directors including without limitation the costs and trustees reasonable fees of the Company, the Guarantor and the Trust and by government officials Lender's legal counsel; and
(provided, however, that copies of any such certificates or documents are delivered to the Purchaservi) and by and upon such other documents documents, instruments, and agreements as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel Lender may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)require.
(db) The Purchaser No Default or Event of Default (other than the Existing Specified Defaults) shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser occurred and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.be continuing;
(ec) The Purchaser shall have received the opinion All of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties contained in this Purchase Agreement are Article V of the Agreement, as amended hereby and in the other Loan Documents, shall be true and correct on and as of the Closing Date date of this Amendment with the same force and effect as if such representations and warranties had been made on the Closing Dateand as of such date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior except to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in extent such representations and warranties speak to a specific date or the condition (financial or other), earnings, business or assets existence of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Existing Specified Defaults.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations 5.01 Conditions for the Benefit of the parties under this Purchase Agreement are Purchaser (1) The sale by the Vendor and the purchase by the Purchaser of the Purchased Assets is subject to the following conditions, which are for the exclusive benefit of the Purchaser and which are to be performed or complied with at or prior to the Time of Closing:
(a) The the representations and warranties contained herein shall of the Vendor set forth in Section 3.01 will be accurate true and correct at the Time of Closing with the same force and effect as if made at and as of the date of delivery of the Preferred Securities.such time;
(b) [Reserved].the Vendor will have performed or complied with all of the terms, covenants and conditions of this Agreement to be performed or complied with by the Vendor at or prior to the Time of Closing;
(c) ▇▇▇▇▇▇the Purchaser will be furnished with such certificates or other instruments (including instruments of conveyance with respect to the Purchased Assets) of the Vendor or of officers of the Vendor as the Purchaser or the Purchaser's counsel may reasonably think necessary in order to establish that the terms, ▇▇▇▇▇covenants and conditions contained in this Agreement to have been performed or complied with by the Vendor at or prior to the Time of Closing have been performed or complied with and that the representations and warranties of the Vendor herein given are true and correct at the Time of Closing;
(d) the transactions contemplated by this Agreement shall have been approved by the shareholders of the Vendor by special resolution and no shareholder of the Vendor shall have exercised a right of dissent pursuant to Section 185 of the Business Corporations Act (Ontario) in respect thereto;
(e) no action or proceeding in Canada will be pending or threatened by any person, government, governmental authority, regulatory body or agency to enjoin, restrict or prohibit the sale and purchase of the Purchased Assets contemplated hereby;
(f) no material damage by fire or other hazard to the Purchased Assets will have occurred from the date hereof to the Time of Closing;
(g) the Purchaser will have been furnished with evidence satisfactory to it that the sale and purchase of the Purchased Assets is in compliance with the provisions of the Bulk Sales Act (Ontario);
(h) all necessary steps and proceedings will have been taken to permit the Purchased Assets to be duly and regularly transferred to and registered in the name of the Purchaser;
(i) there will be a non-competition agreement entered into between the Vendor and the Purchaser substantially in the form attached hereto as Schedule 5.01(1)(i);
(j) there will be a non-competition agreement entered into between each of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇▇ Mudarth (collectively, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for "the Delaware Trustee, dated Developers") and the Closing Date, addressed Purchaser substantially in the form attached hereto as Schedule 5.01(1)(j)
(k) the Vendor will have delivered to the Purchaser and JPMorgan Chase Bank, National Association, a favourable opinion of the Vendor's counsel substantially in substantially the form set out in Annex E hereto.attached hereto as Schedule 5.01(1)(k);
(hl) The Company shall the Vendor will have furnished delivered to the Purchaser a certificate issued by the Ministry of Finance of Ontario pursuant to section 6 of the CompanyRetail Sales Tax Act (Ontario) which indicates that the Vendor has paid all taxes collectable or payable under the said Act up to the Closing Date or has entered into an arrangement satisfactory to the said Minister for the payment of such taxes;
(m) the Developers shall have waived all rights and interests, signed by moral, proprietary or otherwise, if any, in and to the Chief Executive Officer, President or a Vice President, Software;
(n) the Purchaser shall have had an opportunity to inspect and Chief Financial Officer, Treasurer or Assistant Treasurer test compilable source code versions of the CompanySoftware, and the Trust results of such inspection and testing shall have furnished be acceptable to the Purchaser a certificate of the Trustin its sole discretion, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Dateacting reasonably; and
(iio) since October 31, 2004 (as defined below), there has been no material adverse change the Purchaser shall be satisfied that Goods and Services Tax and Retail Sales Tax is not exigible in the condition (financial or other), earnings, business or assets respect of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in sale of the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent Purchased Assets by the Vendor to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Asset Purchase Agreement (Magnitude Information Systems Inc)
Conditions. The obligations consummation of the parties under transactions set forth in Sections 3, 4 and 5 of this Purchase Agreement are shall be subject to the satisfaction of the following conditionsconditions precedent:
(a) The representations Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower and warranties contained herein shall be accurate as the Restatement Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the date Administrative Agent (which may include facsimile transmission of delivery a signed signature page of the Preferred Securitiesthis Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved].
The Administrative Agent shall have received a favorable written opinion (caddressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (Borrower, substantially in the “Company Counsel”)form of Exhibit B-1, shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) ▇▇▇▇▇▇ Law Group PLC, Arizona local counsel for the Company shall have furnished to Borrower, substantially in the Purchaser the opinion form of the Company’s General Counsel in form and substance satisfactory to the Purchaser; Exhibit B-2, and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special Rhode Island local counsel for the Property Trustee and the Indenture TrusteeBorrower, dated the Closing Date, addressed to the Purchaser, substantially in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing DateExhibit B-3, and, in the case of each such opinion required by this paragraph, covering such other matters relating to the CompanyLoan Parties, the Loan Documents or the Restatement Transactions as the Restatement Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Restatement Transactions and any other customary legal matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) Each of the conditions set forth in Section 4.02 of the Restated Credit Agreement shall be satisfied, and the Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming satisfaction of the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received all fees and other amounts due and payable in connection with this Agreement and the Existing Credit Agreement on or prior to the Restatement Effective Date, including, to the extent invoiced in writing at least one Business Day prior to the Restatement Effective Date, reimbursement or payment of all reasonable documented out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall be satisfied after giving effect to the Restatement Transactions, and in connection therewith the Administrative Agent shall have received (i) a completed Perfection Certificate with respect to the Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) dated the Restatement Effective Date and signed by an executive officer or Financial Officer of the Borrower, together with all attachments contemplated thereby, (ii) below and, the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) in the case jurisdictions contemplated by the Perfection Certificate and the copies of the Trustfinancing statements (or similar documents) disclosed by such research and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are expressly permitted by the Restated Credit Agreement, (iii) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Agreement and the Pledge Agreement (including any supplements thereto), after giving effect to the Restatement Transactions, and perfect such Liens to the extent required by, and with the priority required by, the Security Agreement and the Pledge Agreement and (iv) (A) a new Mortgage or an amendment to an existing Mortgage with respect to each Mortgaged Property providing that the Term Loans and extensions of credit under the Revolving Commitments (in addition to the other Obligations) shall be secured by a Lien on each such Mortgaged Property, (B) with respect to amendments to existing Mortgages, endorsements to existing policy or policies of title insurance issued by a nationally recognized title insurance company, insuring the Lien of each such Mortgage as amended so remains a valid first Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.02 of the Restated Credit Agreement, together with such endorsements, coinsurance and reinsurance as the Collateral Agent or the Restatement Lenders may reasonably request and (C) such surveys, abstracts, appraisals, legal opinions and other documents as the Collateral Agent or the Restatement Lenders may reasonably request with respect to any such Mortgage or Mortgaged Property.
(ig) belowA Reaffirmation Agreement substantially in the form of Exhibit C hereto shall have been executed and delivered by each party thereto.
(h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance maintained by Holdings, the Borrower and the Subsidiaries.
(i) The Revolving Lenders and Term Lenders shall have received, to the representations extent requested, all documentation and warranties in this Purchase Agreement are true other information required by bank regulatory authorities under applicable “know your customer” and correct on anti-money laundering rules and as regulations, including the USA PATRIOT Act. The Administrative Agent shall notify the Borrower and the Restatement Lenders of the Closing Date with the same effect as if made on the Closing Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the Company foregoing, the consummation of the transactions set forth in Sections 3, 4 and 5 of this Agreement and the Trust, as applicable, have complied with all obligations of the agreements Term Lenders to make Term Loans and satisfied all the Revolving Commitments of the Revolving Lenders provided for herein shall not become effective unless each of the foregoing conditions on its part to be performed or is satisfied at or prior to the Closing Date; 5:00 p.m., New York City time, on March 6, 2007 (and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgmentevent such conditions are not so satisfied or waived, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled terminate at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitytime).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (On Semiconductor Corp)
Conditions. The obligations amendments described in Sections 2 and 3 above shall become effective upon the date on which each of the parties under this Purchase Agreement are subject to the following conditionsconditions shall have been satisfied:
(a) The representations this Amendment shall have been executed and warranties contained herein shall be accurate delivered by each party hereto, the Special Obligor Letter dated as of the date of delivery hereof shall have been executed and delivered by each party thereto (the "Special Obligor Letter"), and the Fee Letters (together with this Amendment and the Special Obligor Letter, the "Closing Documents") dated as of the Preferred Securities.date hereof for each Purchaser Group shall have been executed and delivered by each party thereto;
(b) [Reserved].the Administrative Agent and each Purchaser Agent shall have received certified copies of (i) the resolutions of the board of directors of the Seller authorizing the execution and delivery of the Closing Documents and the performance by the Seller of the Agreements (as amended by this Amendment) and the Fee Letters and (ii) the certificate of incorporation and bylaws of the Seller;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), Administrative Agent and each Purchaser Agent shall have delivered an opinion, dated received a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign the Closing Date, addressed Documents;
(d) the Administrative Agent and each Purchaser Agent shall have received certified copies of (i) the resolutions of the board of directors (or its designated committee) of the Originator and the Servicer authorizing the execution and delivery of the Closing Documents and the performance by the Originator and the Servicer of the Agreements (as amended by this Amendment) and the Fee Letters and (ii) the certificate of incorporation and bylaws of the Originator and the Servicer;
(e) the Administrative Agent and each Purchaser Agent shall have received a certificate of the Secretary or Assistant Secretary of the Originator and the Servicer certifying the names and true signatures of the officers of the Originator and the Servicer authorized to sign the Closing Documents;
(f) the Administrative Agent and each Purchaser and JPMorgan Chase Bank, National Association, Agent shall have received favorable opinions in form and substance satisfactory acceptable to the Purchaser; (ii) the Company shall have furnished to the Administrative Agent and each Purchaser the opinion of the Company’s General Counsel in form Agent regarding corporate and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)enforceability matters.
(dg) The the Administrative Agent and each Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser Agent shall have received evidence of payment by the opinion Seller of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇all accrued and unpaid fees (including those contemplated by the Fee Letters) and expenses (including all invoiced fees and expenses of Maye▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.);
(h) The Company the Administrative Agent and each Purchaser Agent shall have furnished received good standing certificates with respect to the Purchaser a certificate Seller issued by the Secretaries of the Company, signed by the Chief Executive Officer, President or a Vice President, States of Delaware and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, California; and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations Administrative Agent and warranties in this Purchase Agreement are true and correct on and as each Purchaser Agent shall have received good standing certificates with respect to the Originator issued by the Secretaries of the Closing Date with the same effect as if made on the Closing Date, States of Delaware and the Company and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)California.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Omnibus Amendment (Ingram Micro Inc)
Conditions. The obligations Anything to the contrary herein notwithstanding, Buyer's obligation to purchase the Property shall be expressly conditioned upon the fulfillment of each of the parties under this Purchase Agreement are subject to following conditions precedent (collectively, the following conditions"Buyer's Conditions Precedent") on or before the Closing Date:
(a) The representations Buyer shall have received surveys, title commitments, and warranties contained herein such other property documents, as Buyer shall have reasonably required to be accurate as of the date of delivery of the Preferred Securities.
delivered; (b) [Reserved].Seller shall have delivered tenant estoppel certificates or reliance letters from such Tenants as Buyer shall have required;
(c) ▇▇▇▇▇▇Without duplication of Section 3.2(b) hereof, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), Seller shall have delivered an opinionestoppel certificates from such parties to reciprocal easement and operating agreements affecting any portion of the Property, dated as Buyer shall have reasonably required;
(d) Buyer shall have received such written approvals of the transfer of the Property from such governmental authorities as may be required for such transfer and continued use and operation thereof by Buyer (including without limitation, the consent of the Industrial Development Agency of Seneca County);
(e) Seller shall have delivered (i) if there is a third party property manager, a final lien waiver from the property manager for each portion of the Property or (ii) if there is no third party property manager, a certification whereby Seller represents and warrants to Buyer that there is no third party property manager for each portion of the Property;
(f) As of the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there Seller shall not have commenced (within the meaning of any Bankruptcy Law) a voluntary case, nor shall any involuntary case have been commenced against Seller, nor shall Seller have consented to the appointment of a Custodian of it or for all or any changesubstantial part of its property, nor shall a court of competent jurisdiction have entered an order or decree under any Bankruptcy Law that is for relief against Seller in an involuntary case or which appoints a Custodian of Seller for all or any substantial part of its property. The term "Bankruptcy Law" means Title 11, U.S. Code, or any development involving a prospective changesimilar federal or state law for the relief of debtors. The term "Custodian" means any receiver, in trustee, assignee, liquidator or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If similar official under any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.Bankruptcy Law;
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditionsThis Fourth Amendment shall be effective only if and when:
(a) The Holdings, the Borrower, the other Loan Parties, and each Lender who has consented hereto (constituting collectively the Required Lenders) have delivered their fully executed signature pages hereto to the Administrative Agent;
(b) each of the representations and warranties contained herein in Section 3 of this Fourth Amendment shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved].true and correct in all material respects;
(c) ▇▇▇▇▇▇the Administrative Agent shall have received (i) a certificate as to the good standing or existence (as applicable) of each Loan Party as of a recent date, ▇▇▇▇▇from the Secretary of State of such Loan Party’s state of organization; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Fourth Amendment Effective Date and certifying (A) that there has been no change to the Organizational Documents of the Loan Parties most recently delivered to Administrative Agent in connection with the Credit Agreement (or if any such changes have been made, attaching such amended Organizational Documents), (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or other appropriate authority of such Loan Party authorizing the execution, delivery and performance of this Incremental Amendment and, in the case of the Borrower, the borrowings hereunder (if any), and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing this Amendment any other document delivered in connection herewith on behalf of such Loan Party; and (iii) a certificate of a Responsible Officer of the Borrower as to the satisfaction of each of the conditions in this Section 2, in form and substance reasonably satisfactory to the Administrative Agent;
(d) the Administrative Agent shall have received opinions from counsel to the Loan Parties in relation to corporate capacity and enforceability in form and substance reasonably satisfactory to the Administrative Agent;
(e) at such time that this Fourth Amendment becomes effective, all Term Loans and Revolving Commitments are held by Lenders who have consented to this Fourth Amendment with respect to their entire respective Term Loans and Revolving Commitments at such time;
(f) the Borrower shall have paid all reasonable and documented out-of-pocket costs and expenses, including the reasonable and documented fees of L▇▇▇▇▇ & ▇▇▇and W▇▇▇▇▇▇ LLP, counsel for to the Sellers Administrative Agent and Deutsche Bank Securities Inc. (the “Company CounselFourth Amendment Lead Arranger”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are required to be governed reimbursed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed paid by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of Borrower under the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Credit 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby this Agreement. This Fourth Amendment shall be deemed effective on the date (the “Fourth Amendment Effective Date”) on which all of the foregoing conditions are satisfied (such conditions to be a representation and warranty of the Trustsatisfied no later than February 10, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity2017).
Appears in 1 contract
Sources: Credit Agreement (Twin River Worldwide Holdings, Inc.)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the following conditions:
(a) The representations and warranties contained herein shall be accurate as satisfaction of the following conditions (the date on which all such conditions are satisfied and/or waived, the “Amendment Effective Date”):
2.1. the Administrative Agent (or its counsel) shall have received a duly executed and delivered counterpart of delivery this Amendment signed by each Borrower and each other Loan Party party hereto;
2.2. this Amendment shall have been executed and delivered by the Administrative Agent and Lenders constituting the Required Lenders;
2.3. the Borrowers shall have delivered to the Administrative Agent (i) a true, complete and correct executed copy of an agreement effecting the purchase by DMP (as defined in Section 1.1(b) above), directly or indirectly, of all of the Preferred Securities.
issued and outstanding Equity Interests in the General Partner (b) [Reserved].
(c) ▇▇▇▇▇▇such transaction, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company CounselChange of Control Transaction”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below andevidence reasonably satisfactory to the Administrative Agent that the Change of Control Transaction will, in concurrently with the case effectiveness hereof, be consummated pursuant to the terms of the Trust, as to (i) below.such agreement;
(i) 2.4. the representations and warranties in this Purchase Agreement are Section 3 hereof and in the Loan Documents shall be true and correct on in all material respects (except that any such representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to such qualification) in all respects, and except to the extent that such representations or warranties expressly relate to an earlier date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date);
2.5. at the Closing Date with time of and immediately after giving effect to the same effect as effectiveness of this Amendment, no Default or Event of Default shall have occurred or be continuing;
2.6. if made on the Closing Date, and the Company and the Trusteither Borrower is a “legal entity customer”, as applicabledefined in the Beneficial Ownership Regulation, the Borrower shall have complied with all the agreements furnished a Beneficial Ownership Certification in form and satisfied all the conditions on its part to be performed or satisfied at or prior substance reasonably satisfactory to the Closing Date; and
(ii) since October 31, 2004 Amendment Arranger (as defined below);
2.7. the Borrowers shall have paid to Citizens, there has been no material adverse change in as lead arranger of the condition amendments contemplated hereby (financial or otherthe “Amendment Arranger”), earnings, business or assets and each of the Company and its subsidiaries taken as a whole, whether Lenders executing this Amendment on or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent prior to the execution of this Purchase AgreementAmendment Effective Date, there such arrangement and consent fees as Citizens and such Lenders shall not have been any change, or any development involving a prospective change, in or affecting agreed with the condition (financial or other), earnings, business or assets Borrowers; and
2.8. the Borrowers shall have paid all reasonable and documented out-of-pocket legal fees and expenses of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel Administrative Agent in connection with the Operative Documents preparation, negotiation and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty execution of the Trust, the Guarantor and/or the Company, as the case may bethis Amendment, and not by such trustee or officer in any individual capacityfor which it has received invoices at least one (1) Business Day prior to the date Amendment Effective Date.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the satisfaction of the following conditionsconditions precedent:
(a) Lender shall have received (i) this Amendment, duly executed by the Borrower and Lender, (ii) a certificate of the Secretary of the Borrower acknowledging (A) that the Borrower's Board of Directors has adopted, approved, consented to and ratified resolutions which authorize the execution, delivery and performance by the Borrower of this Amendment, and (B) the names of the officers of the Borrower authorized to sign this Amendment together with specimen signatures of such officers, (iii) the Amended and Restated Intercreditor Agreement, in form and substance satisfactory to Lender, duly executed by Borrower and Upfield; (iv) the Subordination Agreement in form and substance satisfactory to Lender, duly executed by Lender, Upfield and the Additional Holders of the Convertible Notes and acknowledged and agreed to by Borrower, (iv) the Subordinated Note Documents, in form and substance satisfactory to Lender, duly executed by Borrower and the holders of the Subordinated Note Documents, and (v) such additional documents, instruments and information as the Agents or any Lender may reasonably request;
(b) Lender shall have received evidence of the consummation of the Proposed Transaction on terms and conditions satisfactory to Lender and all conditions thereto shall have been satisfied or waived with Lender's consent;
(c) The representations and warranties contained herein and in the Loan Agreement, as amended hereby, and the other Credit Documents shall be accurate true and correct in all material respects as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇hereof, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Datedate hereof;
(d) After giving effect to this Amendment, no Default or Event of Default shall have occurred and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datecontinuing; and
(iie) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries All corporate proceedings taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby by this Amendment and thereby all documents, instruments and other legal matters incident thereto shall be deemed satisfactory to be a representation the Lender and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityits legal counsel.
Appears in 1 contract
Conditions. 4.1 The obligations agreements of the parties under Lenders contained in Clause 3.1 of this Purchase Second Supplemental Agreement are shall all be expressly subject to the following conditionscondition that the Agent shall have received in form and substance satisfactory to it and its legal advisers on or before on or before the Effective Date:
(a) The representations and warranties contained herein shall be accurate as evidence that the persons executing this Second Supplemental Agreement on behalf of the date of delivery of Borrower and the Preferred Securities.Owners are duly authorised to execute the same;
(b) [Reserved].a true and complete copy of the resolution passed at a meeting of the directors of the Borrower authorising and approving the execution of this Second Supplemental Agreement and any other document or action to which it is or is to be a party and authorising its directors or other representatives to execute the same on its behalf;
(c) ▇▇▇▇▇▇, ▇▇▇true and complete copies of the resolutions passed at separate meetings of the sole director and shareholders of each Owner authorising and approving this Second Supplemental Agreement and the relevant Second Mortgage Addendum and any other document or action to which each is or is to be a party and authorising its sole director or other representatives to execute the same on its behalf;
(d) the original of any power of attorney issued by the Borrower and each Owner pursuant to such resolutions aforesaid;
(e) each Second Mortgage Addendum (and each document to be delivered pursuant to each of them) has been duly executed by the relevant Owner together with evidence that each Second Mortgage Addendum has been duly registered as an addendum to the Mortgage to which it relates in accordance with the laws of the M▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.Islands;
(f) The Purchaser shall have received certified copies of all documents (with a certified translation if an original is not in English) evidencing any other necessary action, approvals or consents with respect to this Second Supplemental Agreement (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.Agent deems appropriate;
(g) The Purchaser shall have received such legal opinions as the opinion Agent may require in respect of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser matters contained in this Second Supplemental Agreement and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.each Second Mortgage Addendum; and
(h) The Company shall have furnished evidence that the agent referred to the Purchaser a certificate in clause 30.4 of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer Loan Agreement has accepted its appointment as agent for service of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowprocess under this Second Supplemental Agreement.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations (a) This Amendment shall be effective upon satisfaction of the parties under this Purchase Agreement are subject to the following conditionsconditions precedent:
(ai) This Amendment shall have been executed by each party hereto; and
(ii) The Agent shall have received a certificate from the chief financial officer of the Company certifying that (A) immediately after giving effect to this Amendment, all representations and warranties made hereunder, in the Loan Agreement and in the other Loan Documents shall be true and correct as if made on the date hereof, (B) the Borrowers have performed and complied with all covenants, agreements and conditions contained herein shall which are required to be accurate as of performed or complied with by the Borrowers on or before the date hereof and (C) no Default or Event of delivery of the Preferred SecuritiesDefault shall have occurred and be continuing after giving effect to this Amendment.
(b) [Reserved].The following shall be conditions precedent to the execution of this Amendment:
(ci) The Agent shall have received (i) a certificate from an authorized officer of each Borrower, or of its member or of each of its partners, certifying that there have been no changes to each of the articles of incorporation or certificates of formation or other charter documents of such Borrower, or to the bylaws or other similar agreements of such Borrower since March 30, 2006, or certifying copies of any articles of incorporation or certificates of formation or other charter documents, or bylaws or other similar agreements of such Borrower that have changed since ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP) copies of resolutions of the Board of Directors or similar managing body of each Borrower, counsel for or of its member or of each of its partners, approving and adopting this Amendment and the Sellers transactions contemplated herein and authorizing execution and delivery of this Amendment and certified by the secretary or an assistant secretary of such Borrower, or of its member or of each of its partners, to be true and correct and in force and effect as of the date hereof, (iv) a certificate of the secretary or an assistant secretary of each Borrower, or of its member or of each of its partners, certifying as to the incumbency of the officers or authorized signatories of each Borrower, or of its member or each of its partners, signing this Amendment, the Fee Letter or the certificate described in Section 3(a)(ii) hereof and (v) an original, duly certified as of a current date by the applicable Secretary of State or other official, of a good standing certificate issued by the jurisdiction of incorporation or organization of each Borrower in which the jurisdiction in question issues such a certificate;
(ii) The Borrowers shall have paid the fees described in the Fee Letter and all other fees and expenses of the Agent and the Attorney Costs incurred in connection with this Amendment and any of the Loan Documents and the transactions contemplated thereby to the extent invoiced;
(iii) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Loan Agreement;
(iv) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Borrowers and to make copies thereof, and to conduct a field examination and audit of the Collateral which shall include, without limitation, updated desktop fixed asset appraisals, verification of Inventory, Accounts, and the Borrowing Base, and in each case the results of such examination and audit shall have been satisfactory to the Agent and the Lenders in all respects;
(v) All proceedings taken in connection with the execution of this Amendment and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent and the Lenders;
(vi) The Agent shall have received a copy of the signed order (the “Company CounselAmendment Order”), ) of the Bankruptcy Court in substantially the form attached hereto as Annex II authorizing and approving the transactions contemplated hereby. The Amendment Order (i) shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, be in form and substance satisfactory to the Purchaser; Agent, (ii) shall be certified by the Company shall have furnished to the Purchaser the opinion Clerk of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and Bankruptcy Court as having been duly entered, (iii) Irvine Law Group, P.C., special tax counsel to shall approve the Guarantor shall have delivered an opinion in form and substance satisfactory to payment by the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Borrowers of all of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts fees set forth in the law of any other jurisdiction. Such Company Counsel Opinion Fee Letter, and (iv) shall be in full force and effect and shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayervacated, Brownreversed, ▇▇▇▇ & Maw LLPmodified, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President amended or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datestayed; and
(iivii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as Each Person which is a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent Lender prior to the execution of this Purchase Agreement, there shall Amendment and which is not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust executing this Amendment shall have furnished assigned all of its Commitments to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in a Lender which is executing this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityAmendment.
Appears in 1 contract
Sources: Post Petition Loan and Security Agreement (W R Grace & Co)
Conditions. 3.1 The obligations of the parties under this Purchase Agreement Sellers and the Purchaser to complete the sale and purchase of the Shares and the Business (including the Business Assets) are subject in all respects conditional on the satisfaction (or waiver, if permitted, as the case may be) of those matters set out in Schedule 2 (Conditions).
3.2 The Parties shall use all reasonable endeavours to procure the fulfilment of the Conditions as soon as possible, and in any event before the Long Stop Date.
3.3 The Purchaser and the Sellers shall submit or have submitted to the following conditions:
(a) The representations Regulatory Authority the premerger notification and warranties contained herein shall be accurate as of report form filing under the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) H▇▇▇-▇▇▇▇▇▇, ▇▇▇▇-▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPAntitrust Improvements Act of 1976, counsel for as amended as soon as reasonably possible following the date of this Agreement and in any event within five (5) Business Days of the date of this Agreement.
3.4 The Sellers and the Purchaser agree that the Sellers and the Purchaser shall cooperate with each other and the Regulatory Authority, to the extent necessary and on a confidential basis, and provide all necessary information (including a so-called “US Request for Additional Information and Documentary Material” or “Second Request”) and assistance reasonably required by the other or by the Regulatory Authority as soon as reasonably practical upon being requested to do so, provided that Sellers and Purchaser may restrict their information to the Sellers’ Solicitors or Purchaser’s Solicitors respectively on a strictly confidential basis (“Company CounselCooperation”); provided further, Purchaser and Sellers shall have delivered an opinionequal obligation to provide such Cooperation in response to any inquiry from any other Governmental Authority in connection with the transactions that are contemplated by this Agreement.
3.5 The Purchaser shall:
(a) allow the Sellers the opportunity to participate in any call or meeting with the Regulatory Authority, dated promptly inform the Closing DateSellers of the content of any meeting, addressed to material conversation and any other communication which takes place between the Purchaser and JPMorgan Chase Bank(or its agents, National Association, in form and substance satisfactory to the Purchaser; (iirepresentatives or advisers) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions Regulatory Authority in which they are admitted to practice the Sellers did not participate and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, andprovide copies or, in the case of non-written communications, a written summary, to the CompanySellers or the Sellers’ Solicitors;
(b) procure that the Sellers are given a reasonable opportunity to review and provide reasonable comments on drafts of all notifications, as filings and submissions before they are submitted to the Regulatory Authority and provide the Sellers with final copies of all such notifications, filings and submissions (iit being acknowledged that certain such drafts and/or documents may be shared with the Sellers’ Solicitors only on a confidential basis) and (ii) below andtake account of any reasonable comments; provided further and notwithstanding anything to the contrary in this Agreement, in the case Purchaser shall have sole control of the Trustsubstantive communications with the Regulatory Authority and any other applicable competition or antitrust Governmental Authority and all strategic decisions relating to the Condition in Paragraphs 1, as to 2 and 3 of Schedule 2 (iConditions) below.(the “Regulatory Conditions”);
(ic) have an obligation to oppose any administrative or judicial action or proceeding instituted (or threatened to be instituted) by the representations and warranties Regulatory Authority challenging the transactions contemplated by this Agreement solely in this Purchase Agreement are true and correct on and as of the Closing Date connection with the same effect as if made on Regulatory Conditions until the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Long Stop Date; and
(iid) since October 31, 2004 (as defined below), there has been no material adverse change in use its best endeavours to avoid any declaration of incompleteness by the condition (financial Regulatory Authority or other), earnings, business or assets any other suspension of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)periods for clearance.
3.6 The Purchaser shall not, without the prior written consent of the Sellers (inot to be unreasonably withheld) Subsequent withdraw any notification, filing or submission made to the execution of Regulatory Authority.
3.7 Notwithstanding the foregoing, [***], then the Purchaser may terminate this Purchase AgreementAgreement by notice in writing to the Sellers, there shall not have been subject to the Purchaser paying to the Sellers a one-time reverse break-up fee equal to [***] (the “Break Fee”) (less any changereasonable and documented third party fees, costs and expenses incurred by the Purchaser or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets other member of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed Group in connection with the purchase negotiation, preparation and performance of this Agreement and the other Transaction Documents up to a maximum amount of [***] (the “Break Fee Deduction”), provided that no Break Fee Deduction will be payable where [***] The payment of the Preferred SecuritiesBreak Fee, less the Break Fee Deduction, if applicable, shall be exclusive remedy of the Sellers for the matters set forth in this Clause 3.7.
(j) Prior 3.8 The Sellers undertake to notify the Closing DatePurchaser in writing, the Company and the Trust shall have furnished Purchaser undertakes to notify the Purchaser Sellers in writing, of anything which will or may prevent any of the Conditions from being satisfied on or before the Long Stop Date promptly after it comes to its attention.
3.9 Each Party undertakes to notify the other Parties as soon as possible on becoming aware that any of the Conditions has been satisfied and its counsel in any event within [***] of such further information, certificates and documents as the Purchaser or its counsel may reasonably request. satisfaction.
3.10 If any of the conditions specified in this Section 3 shall Conditions is not have been fulfilled when and as provided in this Purchase Agreementor waived on or before the Long Stop Date, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation Parties shall be given entitled to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, treat this Agreement as the case may beterminated subject to, and not by such trustee or officer in any individual capacityon the basis set out in, Clause 21.2.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement consent set forth in §1 and the amendments set forth in §2 are subject to the satisfaction of the following conditions precedent or concurrent (the date of satisfaction of such conditions:, the “Effective Date”):
(a) The representations Administrative Agent shall have received a fully executed copy of a consent and warranties contained herein shall be accurate amendment to the Bond Facility Agreement, permitting the Specified Change of Control and otherwise on terms permitted by the Loan Documents, certified by a Financial Officer as of the date of delivery of the Preferred Securitiesbeing complete and correct.
(b) [Reserved]The Administrative Agent shall have received evidence reasonably satisfactory to it of the consummation of the Acquisition prior to or substantially contemporaneously with the Effective Date.
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), The representations and warranties set forth in Section 4 hereof shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser be true and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)correct.
(d) The Purchaser All fees and expenses required to be paid on or before the date hereof in connection with this Amendment in accordance with Credit Agreement shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B heretopaid.
(e) The Purchaser the Borrower shall have received paid, by wire transfer of immediately available funds, to the opinion of ▇▇▇▇▇▇▇▇Administrative Agent, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trusteeaccount of each Lender that delivers a signed counterpart of this Amendment prior to 3:00 p.m. (New York City time) on June 13, dated 2017 (the Closing “Signing Date”), addressed a fee in an aggregate amount equal to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate 0.25% of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer outstanding principal amount of the Company, Tranche B Term Loans and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed Revolving Commitments held by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Agreement are true and correct on and as of the Closing Date with the same effect as if made such Lender on the Closing Signing Date, and the Company and the Trust, as applicable, have complied . For purposes of determining compliance with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in 6, each Lender that has signed this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby Amendment shall be deemed to have consented to, approved, accepted or be satisfied with, each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a representation Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Effective Date, specifying its objection thereto. The Administrative Agent shall notify the Parent, the Borrower and warranty the Lenders of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityEffective Date.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
Conditions. The obligations of the parties under this Purchase Agreement are subject Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions:conditions shall be satisfied (or waived in accordance with Section 9.02):
(a) The representations and warranties contained herein Administrative Agent shall be accurate as have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the date Administrative Agent (which may include a facsimile transmission) that such party has signed a counterpart of delivery of the Preferred Securitiesthis Agreement.
(b) [Reserved].
The Administrative Agent shall have received a favorable written opinion (caddressed to the Administrative Agent and the Lenders and dated the Effective Date) of (i) Proskauer Rose LLP, New York counsel for the Loan Parties, (ii) Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Acquired Company and California and Pennsylvania counsel to certain of the Loan Parties, (iii) ▇▇▇ ▇▇▇▇▇▇ LLP, Connecticut counsel to certain of the Loan Parties, (iv) ▇▇▇▇▇▇▇ Donelson, ▇▇Bearman, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP▇, PC, Tennessee counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion certain of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and Loan Parties, (iiiv) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇▇▇▇▇ & Maw ▇▇▇▇▇▇▇, LLP, special tax Indiana counsel for to certain of the PurchaserLoan Parties, dated (vi) ▇▇▇▇▇▇ & Savage PC, Virginia counsel to certain of the Closing DateLoan Parties, addressed (vii) ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, Ohio counsel to certain of the Purchaser Loan Parties and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(eviii) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ Traurig LLP, special Nevada counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate certain of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the TrustLoan Parties, in each case dated in form and substance reasonably satisfactory to the Closing DateAdministrative Agent.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent may reasonably request relating to the organization, andexistence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent.
(d) The representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct (i) in the case of the Company, representations and warranties qualified as to (i) materiality, in all respects and (ii) below andotherwise, in all material respects, in each case on and as of the Effective Date, except in the case of the Trustany such representation and warranty that expressly relates to a prior date, as to (i) below.
(i) the representations in which case such representation and warranties in this Purchase Agreement are warranty shall be so true and correct on and as of such prior date.
(e) No Default shall have occurred and be continuing.
(f) The Administrative Agent shall have received a certificate, dated the Closing Effective Date and signed by the chief financial officer of the Company, confirming compliance with the same conditions set forth in the first sentence of paragraphs (h) of this Section, in paragraphs (d) and (e) and in the first sentence of paragraph (j) of this Section.
(g) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the chief financial officer of the Company, as to the solvency of the Loan Parties on a consolidated basis after giving effect as if made on to the Closing DateTransactions, in form and substance reasonably satisfactory to the Administrative Agent.
(h) The Collateral and Guarantee Requirement shall have been satisfied (subject to the penultimate paragraph of this Section). The Administrative Agent shall have received a completed Perfection Certificate, dated the Effective Date and signed by an executive officer or a Financial Officer of each of the Company and the TrustAcquired Company, as applicable, have complied together with all attachments contemplated thereby, including the agreements and satisfied all results of a search of the conditions on its part to be performed UCC (or satisfied at or prior equivalent) filings made with respect to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change Loan Parties in the condition (financial or other), earnings, business or assets jurisdictions contemplated by the Perfection Certificate and copies of the Company financing statements (or similar documents) disclosed by such search and its subsidiaries taken as a wholeevidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted under Section 6.02 or have been, whether or not arising from transactions occurring in substantially contemporaneously with the ordinary course initial funding of business (a “Material Adverse Change”)Loans on the Effective Date will be, released.
(i) Subsequent The Administrative Agent shall have received evidence that the insurance required by Section 5.08 is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiesextent required under Section 5.08.
(j) Prior The Acquisition shall have been consummated, or substantially concurrently with the Effective Date shall be consummated, pursuant to and on the terms set forth in the Acquisition Agreement (and the Acquired Company shall have become, or substantially concurrently with the Effective Date shall become, a wholly owned Subsidiary of the Company), and all conditions precedent to the Closing Dateconsummation of the Offer (as defined in the Acquisition Agreement as in effect on the original date thereof) and the Merger (as defined in the Acquisition Agreement as in effect on the original date thereof) shall have been satisfied, in each case without giving effect to any amendments, waivers or consents that are adverse in any material respect to the Loan Parties that have not been approved by the Arrangers. The Administrative Agent shall have received a copy of the Acquisition Agreement, certified by a Financial Officer or other executive officer of the Company as being complete and correct and as enclosing all closing certificates, opinions and other closing documents delivered in satisfaction of the closing conditions set forth in the Acquisition Agreement.
(k) All principal, premium, if any, interest, fees and other amounts due or outstanding under the Existing Acquired Company Credit Agreement shall have been paid in full, or substantially concurrently with the Effective Date shall be paid in full, the commitments and letters of credit outstanding thereunder shall have been terminated, or substantially concurrently with the Effective Date shall be terminated or backstopped by letters of credit issued under the ABL Credit Agreement, and all guarantees and liens existing in connection therewith shall have been discharged and released, or substantially concurrently with the Effective Date shall be released, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(l) The Lenders shall have received projections for the Company and the Trust Subsidiaries through end of the sixth fiscal year of the Company after the Effective Date.
(m) The Lenders shall have furnished received the financial statements, opinions and certificates referred to in Section 3.04.
(n) The Administrative Agent and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Purchaser Effective Date, including, to the extent invoiced, payment or reimbursement of all fees and expenses (including fees, charges and disbursements of counsel) required to be paid or reimbursed by any Loan Party under the Commitment Letter, the Administrative Agent Fee Letter or any Loan Document.
(o) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, at least five days prior to the Effective Date. Notwithstanding anything to the contrary in clauses (d) or (e) above, the only representations and warranties relating to the Acquired Company and its counsel such further information, certificates and documents as subsidiaries the Purchaser or its counsel may reasonably request. If any making of which shall be a condition to the obligations of the Lenders to make Loans hereunder shall be the Acquired Company Acquisition Agreement Representations and the Specified Representations. Notwithstanding the foregoing, solely with respect to the matters expressly identified in the Post-Closing Letter Agreement, the satisfaction of the foregoing conditions specified shall not be required on the Effective Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder, but shall be required to be accomplished in this accordance with the Post-Closing Letter Agreement. The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived in accordance with Section 3 9.02) at or prior to 5:00 p.m., New York City time, on June 14, 2012 (and, in the event such conditions shall not have been fulfilled when and as provided in this Purchase Agreement, so satisfied or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Companywaived, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby Commitments shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by terminate at such trustee or officer in any individual capacitytime).
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject Lenders to make Loans hereunder shall not become effective until each of the following conditions:conditions has been satisfied (or waived in accordance with Section 9.02):
(a) The representations and warranties contained herein Administrative Agent (or its counsel) shall be accurate as have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the date Administrative Agent (which may include telecopy transmission of delivery a signed signature page of the Preferred Securitiesthis Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved].
The Administrative Agent shall have received the favorable written opinions (caddressed to the Administrative Agent and the Lenders and dated the date hereof) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of (i) Bingham McCutchen LLP, counsel for the Sellers (the “Company Counsel”)Company, shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser substantially ▇▇ ▇▇▇ f▇▇▇ ▇▇ ▇▇hibit C-1 and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s Mark T. Beaudouin, Vice President, General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, Secreta▇▇ ▇▇ ▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, substantially in substantially the form set out in Annex C heretoof Exhibit C-2. Each Loan Party hereby requests such counsel to deliver such opinions.
(fc) The Purchaser Administrative Agent shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee such documents and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser Administrative Agent or its counsel may reasonably request. If any request relating to the formation, existence and good standing of the conditions specified in this Section 3 shall not have been fulfilled when Loan Parties and as provided in this Purchase Agreement, or if any the authorization of the opinionsTransactions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory all in form and substance reasonably satisfactory to the Purchaser or Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, this Purchase Agreement dated the date hereof and all the Purchaser’s obligations hereunder may be canceled at the Closing Date signed by the Purchaser. Notice chief financial officer of such cancellation shall be given to the Company, confirming that the Guarantor conditions set forth in paragraphs (f), (g) and the Trust in writing (h) of this Article have been satisfied.
(e) The Administrative Agent shall have received all fees and other amounts due and payable on or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered prior to the Purchaser or date hereof, including, to the Purchaser’s counsel in connection extent an invoice with the Operative Documents and the transactions contemplated hereby and thereby respect thereto shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or have been received by the Company, as reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the case may be, and not by such trustee Company hereunder or officer in under any individual capacity.other Loan
Appears in 1 contract
Sources: Credit Agreement (Waters Corp /De/)
Conditions. The obligations This Agreement shall become effective as of the parties under this Purchase Agreement are subject to first date (the “2015 Refinancing Effective Date”) when each of the following conditionsconditions shall have been satisfied:
(a) The the Administrative Agent (or its counsel) shall have received from each Loan Party, the Refinancing Term Lender and the Administrative Agent (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement;
(b) the Administrative Agent shall have received (i) any required notice of prepayment of Term B Loans pursuant to Section 2.10(d) of the Credit Agreement and (ii) any required notice of borrowing of Refinancing Term Loans pursuant to Section 2.03 of the Credit Agreement; provided, in each case, that such notice of prepayment and notice of borrowing shall be delivered in accordance the time periods specified in Sections 2.10(d) and 2.03, as applicable, of the Credit Agreement or such shorter period as the Administrative Agent may agree;
(c) the representations and warranties contained herein set forth in Section 4 above shall be accurate true and correct as of the date of delivery hereof;
(d) the Administrative Agent shall have received a certificate, dated the 2015 Refinancing Effective Date and executed by a Responsible Officer of the Preferred Securities.Borrower, confirming the accuracy of the representations and warranties set forth in Section 4 above;
(be) [Reserved].
the Administrative Agent shall have received, on behalf of itself and the Refinancing Term Lender, a favorable written opinion of (cA) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇as New York and Delaware special counsel for the Loan Parties and (B) McGuireWoods LLP, as Florida and Georgia counsel for the Loan Parties, in each case (i) dated the date hereof, (ii) addressed to the Administrative Agent and the Refinancing Term Lender and (iii) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to this Agreement as the Administrative Agent shall reasonably request;
(f) the Administrative Agent shall have received customary closing certificates and documentation consistent with those delivered on the Closing Date and such additional customary documents and filings as the Administrative Agent may reasonably require to assure that the Refinancing Term Loans contemplated hereby are secured by the Collateral ratably with the existing Revolving Facility Loans;
(g) the payment of the Term B Loan Repayment Amount by the Borrowers to the Administrative Agent for the accounts of the existing Term B Lenders, as a voluntary prepayment in full of the Term B Loans outstanding on the 2015 Refinancing Effective Date, shall occur simultaneously with the Borrowing of such Refinancing Term Loans; and
(h) any fees and reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for ) owing by the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed Borrower to the Purchaser Administrative Agent and JPMorgan Chase Bank, National Association, in form and substance satisfactory invoiced prior to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser date hereof shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, paid in substantially the form set out in Annex B hereto.
full (e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) any such fees and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel reasonable out-of-pocket expenses incurred in connection with this Agreement or the Operative Documents and the transactions contemplated hereby and thereby shall be deemed Term B Loan Financing, subject to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer any agreed-upon limits contained in any individual capacityletter agreement with the Administrative Agent or its affiliates entered into in connection with this Agreement or the Term B Loan Refinancing).
Appears in 1 contract
Sources: Incremental Assumption Agreement and Amendment No. 1 (Presidio, Inc.)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the following conditionsconditions precedent:
(a) The representations the Company, each other Loan Party and warranties contained herein each Bank shall be accurate have executed and delivered this Amendment and such other documents and instruments as of the date of delivery of the Preferred Securities.Agent may reasonably require;
(b) [Reserved].the Company shall have executed and delivered to each Bank, as applicable, a Note evidencing such Bank’s Pro Rata Share of the Commitment Amount after giving effect to this Amendment;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered, or caused to be delivered, to Agent, a certificate of the corporate secretary or assistant corporate secretary of each Loan Party pursuant to which such secretary or assistant secretary, on behalf of such Loan Party certifies as to (x) the incumbency and signature of the Persons executing this Amendment and any other Loan Documents delivered an opinionin connection herewith on behalf of such Loan Party, dated (y) resolutions, which shall be attached thereto, authorizing the execution, delivery and performance of this Amendment and such Loan Documents by such Loan Party, and (z) the fact that the articles of incorporation, articles of organization, bylaws, limited liability company agreement or other organizational documents of such Loan Party have not been amended, modified or supplemented since the date on which certified copies thereof previously were delivered to Agent under the Loan Documents, and remain in full force and effect;
(d) the Company shall have delivered, or caused to be delivered, to Agent, with respect to each Loan Party, a recent certificate of good standing issued by the Secretary of State of such Loan Party’s jurisdiction of incorporation;
(e) the Company shall have delivered, or caused to be delivered, to Agent written opinions of law of counsel to the Company and its Subsidiaries with respect to this Amendment and the Loan Documents executed in connection herewith as well as Montana and Wyoming regulatory matters, in each case, similar to such opinions delivered on the Closing Date, addressed Date with respect to the Purchaser Credit Agreement and JPMorgan Chase Bank, National Association, the original Loan Documents and otherwise in form and substance satisfactory to the Purchaser; Agent and Agent’s counsel;
(iif) the Company shall have furnished delivered, or caused to the Purchaser the opinion be delivered, to Agent a certificate of a Responsible Officer of the Company’s General Counsel in form and substance satisfactory Company pursuant to the Purchaser; and (iii) Irvine Law Groupwhich such Responsible Officer, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees on behalf of the Company, certifies to Agent that, both before and after giving effect to this Amendment (and assuming the Guarantor full funding of the additional Commitment Amount provided hereby), the Company is and shall be in compliance with Section 10.1 of that certain Note Purchase Agreement dated as of June 29, 2007 (the “Note Purchase Agreement”) by and among the Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord holders of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.Private Placement Notes Debt thereunder;
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties set forth in Section 5 of this Purchase Agreement are Amendment shall be true and correct on and as of correct;
(h) the Closing Date with the same effect as if made on the Closing Date, and Agent shall have received from the Company for the account of each Bank an upfront, fully-earned and non-refundable closing fee in the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Dateamount of $50,000; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, all proceedings taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby by this Amendment and thereby all documents, instruments and other legal matters incident thereto shall be deemed reasonably satisfactory to be a representation the Agent and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityits legal counsel.
Appears in 1 contract
Sources: Credit Agreement (Gas Natural Inc.)
Conditions. The obligations of This Agreement shall become effective on the parties under this Purchase Agreement are subject to date in which the following conditionsconditions precedent have been satisfied or waived:
(a) The representations this Agreement shall have been executed by each Loan Party, Administrative Agent, and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.Required Lenders;
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Agreement are shall be true and correct in all material respects on and as of the Closing Date date of this Agreement, except to the extent that (i) any of them speak to a different specific date, or (ii) the facts on which any of them were based have been changed by transactions contemplated or permitted by the Credit Agreement;
(c) after giving effect to this Agreement, no Default or Event of Default shall exist;
(d) Administrative Agent shall have received a true and correct copy of the Resolutions of Borrower that authorize the execution, delivery, and performance of this Agreement and the other documents executed in connection herewith;
(e) Borrower shall have provided evidence reasonably satisfactory to Administrative Agent that, simultaneously with the same effect as if made on effectiveness of this Agreement, the Closing Date, provisions of the Tower Construction Loan Agreements and the Company and the Trust, as applicable, Senior Term Loan will have complied with all the agreements and satisfied all the conditions on its part to be performed been amended or satisfied at or prior waived to the Closing Dateextent necessary to correspond to the amendments and waivers with respect to Change in Control set forth in this Agreement;
(f) the Subject Board Changes do not result in a “change in control” or similar event under any agreement evidencing or governing any Indebtedness of the Consolidated Group that has not been waived in writing by all applicable parties; and
(iig) since October 31Administrative Agent shall have received, 2004 for the benefit of each Lender executing and delivery this Agreement to counsel to Administrative Agent by 12:00 noon (as defined below)New York time) on Friday, there has been no material adverse change in the condition (financial or other)August 17, earnings2007, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent an amendment fee equal to the execution product of (a) the amount of such Lender’s Commitment on the effective date of, and after giving effect to, this Purchase Agreement, there shall not have been any changetimes (b) 0.35%, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given other fees and expenses payable to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel Administrative Agent in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitythis Agreement.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:
(a) The representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved]The Purchaser shall have sold securities issued by it in such an amount that the net proceeds therefrom shall be available on the Closing Date and shall be sufficient to purchase the Preferred Securities and all other preferred securities contemplated in agreements similar to this Agreement.
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Bird LLP, counsel for the Sellers Company and the Trust (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to Bear ▇▇▇▇▇▇▇ & Co. Inc. in substantially the Purchaser form set out in Annex A-I hereto and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory or Assistant General Counsel, dated the Closing Date, addressed to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to in substantially the Guarantor shall have delivered an opinion form set out in form and substance satisfactory to the PurchaserAnnex A-II hereto. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor Company and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. If the Company Counsel is not admitted to practice in the State of New York, the opinion of the Company Counsel may assume, for purposes of the opinion, that the laws of the State of New York are substantively identical, in all respects material to the opinion, to the internal laws of the state in which such counsel is admitted to practice. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser Purchaser, the Company and the Trust shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser Purchaser, the Company and JPMorgan Chase Bank, National Association, the Trust in substantially the form set out in Annex B hereto.
(e) The Purchaser Purchaser, the Company and the Trust shall have received the opinion of Potter ▇▇▇▇▇▇▇▇, ▇ & ▇▇▇▇▇▇ & Finger, P.A.▇▇, special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association▇▇▇▇▇ Fargo Delaware Trust Company, the Delaware Trustee Trustee, the Trust and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser Purchaser, the Company and the Trust shall have received the opinion of Gardere Potter ▇▇▇▇▇ ▇▇▇▇▇▇ LLP& ▇▇▇▇▇▇▇, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, the Company and the Trust in substantially the form set out in Annex D hereto.
(g) The Purchaser Purchaser, the Company and the Trust shall have received the opinion of Potter ▇▇▇▇▇▇▇▇, ▇ & ▇▇▇▇▇▇ & Finger, P.A.▇▇, special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser Purchaser, the Company, the Trust and JPMorgan Chase Bank, National Association▇▇▇▇▇ Fargo Delaware Trust Company, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a an Executive or Senior Vice President, and Chief Financial Officer, Deputy Chief Financial Officer, Chief Investment Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, Trust have complied with all the agreements and satisfied all the conditions on its either of their part to be performed or satisfied at or prior to the Closing Date; and
(ii) since October March 31, 2004 2005 (as defined belowthe date of the latest Financial Statements), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a wholesubsidiaries, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor Company and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s reasonable judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at, or at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor Company and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor Trust and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Purchase Agreement (Homebanc Corp)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the satisfaction of the following conditionsconditions precedent:
(a) The representations Lender shall have received a counterpart of this Amendment duly executed by the Borrower and warranties contained herein the Lender;
(b) The Lender shall be accurate have received an executed copy of that certain letter agreement dated as of the date of delivery of hereof by and between the Preferred Securities.
Borrower and the Lender (b) [Reserved].the “Fee Letter”);
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), The Lender shall have delivered an opinionreceived: (i) certificates of good standing or existence, dated as may be available from the Closing DateSecretary of State of the jurisdiction of incorporation of the Borrower and each other jurisdiction where the Borrower is required to be qualified to do business as a foreign corporation, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished certificates of good standing or existence with respect to the Purchaser the opinion each material Subsidiary of the Company’s General Counsel Borrower (which shall include, in form and substance satisfactory to any event, each Financial Institution Subsidiary), as may be available from the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Secretary of State of the Companyjurisdiction of incorporation or formation of each such Subsidiary and each other jurisdiction where such Subsidiary is required to be qualified to do business as a foreign corporation (except, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered solely with respect to the Purchaser) and by and upon such other documents as such counsel mayUnited Community Bank, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law State of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991Tennessee).;
(d) The Purchaser Lender shall have been furnished received a certificate of the opinion Secretary or Assistant Secretary of Mayerthe Borrower attaching and certifying copies of its bylaws and of the resolutions of its board of directors, Brownauthorizing the execution, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser delivery and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.performance of this Agreement;
(e) The Purchaser Borrower shall have received paid all fees and expenses contemplated by: (i) Section 7 hereof and (ii) the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.Fee Letter; and
(f) The Purchaser Lender shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPsuch other documents, special counsel for the Property Trustee instruments and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel Lender may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance request relating to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityherein.
Appears in 1 contract
Conditions. The obligations obligation of Softbank to make the parties under this Purchase Agreement are Loan is subject to fulfillment by OptiMark of all of the following conditions:
(a) Execution and delivery by OptiMark or its Subsidiaries, as applicable, of this Loan Agreement, Notes, Security Agreement, UCC's, Guarantees and all other executed Related Documents.
(b) The representations and warranties contained herein in Article 6 hereof and in each Related Document shall be correct and accurate in all material respects on and as of Closing as though made on and as of such date and no Event of Default and no condition or event which, with the giving of notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing on Closing and Softbank shall have received a certificate in the form set forth on Exhibit B attached hereto and signed by the Chief Executive Officer of OptiMark, dated as of the date of delivery of the Preferred Securities.
(b) [Reserved]Closing Date, to that effect.
(c) ▇▇▇▇▇▇OptiMark shall have complied in all material respects with all covenants and obligations to be performed or observed by it at or prior to such time, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPincluding but not limited to those set forth in the Loan Agreement.
(d) OptiMark shall have obtained all consents of third parties, including, without limitation, any Governmental Body, required in connection with the execution and delivery of this Loan Agreement and the Related Documents and consummation of the transactions contemplated hereby and thereby.
(e) Softbank shall have received a favorable written opinion of outside counsel for the Sellers (the “Company Counsel”), shall have delivered an opinionOptiMark, dated the Closing Date, addressed to in substantially the Purchaser form of Exhibit C and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the a favorable written opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax in-house counsel for the PurchaserOptiMark, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C heretoExhibit C1.
(f) The Purchaser Softbank shall have received copies of all corporate action taken by OptiMark and its Subsidiaries to authorize this Loan Agreement, the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPRelated Documents, special counsel for the Property Trustee borrowings hereunder and the Indenture TrusteeNotes, dated certified as of the Closing Date, addressed to Date by the Purchaser, in substantially the form set out in Annex D heretoSecretary of OptiMark.
(g) The Purchaser Softbank shall have received (i) acknowledgement copies of Financing Statements (Form UCC-1) duly filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of ▇▇▇▇▇▇▇▇Softbank, ▇▇▇▇▇▇ & Fingeradvisable to perfect the Liens created by the Security Agreement and the Guarantees, P.A.(ii) acknowledgement copies of recordings in the U.S. Patent and Trademark Office of notices in respect of patents, special Delaware counsel for patent applications, trademark registrations and trademark applications of OptiMark and/or the Delaware Trustee, dated Subsidiaries created by the Closing Date, addressed to Security Agreement or the Purchaser and JPMorgan Chase Bank, National AssociationGuarantees if, in substantially the form set out opinion of Softbank, such filings should be made and (iii) evidence of the completion of all other recordings and filings and such other actions necessary or, in Annex E heretothe opinion of Softbank, advisable to perfect the Liens created by the Security Agreement and the Guarantees.
(h) The Company There shall have furnished not be pending or threatened any action or proceeding before any court or administrative agency relating to the Purchaser a certificate transactions contemplated by this Loan Agreement or the Related Documents which could reasonably be expected to materially impair the ability of OptiMark to perform its obligations under this Loan Agreement or under the Related Documents or which could reasonably be expected to materially impair the ability of OptiMark to issue the Series F Preferred Stock or materially adversely affect the rights of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowSeries F Preferred Stock.
(i) Except as described in OptiMark's Quarterly Report on Form 10-Q dated November 14, 2001 (the representations and warranties in "10-Q") or otherwise described on Exhibit 5.1(i) of this Purchase Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing DateLoan Agreement, and the Company and the Trustsince September 30, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below)2001, there has been no material adverse change in the condition (financial event, occurrence, change, development or other), earnings, business state of affairs that had or assets of the Company and its subsidiaries taken as will have a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred SecuritiesEffect.
(j) Prior to the Closing Date, the Company and the Trust Softbank shall have furnished to the Purchaser and its counsel received such further information, certificates and other documents as the Purchaser or its counsel Softbank may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are subject to the following conditions:4.1 Conditions
(a) The the representations and warranties contained herein given by the Sellers Group in this agreement shall have been true, accurate and not misleading when made and shall be true, accurate and not misleading as of Completion with the same force and effect as if made as of Completion, except to the extent such representations and warranties are as of another date, in which case, such representations and warranties shall be true, accurate and not misleading as of that date with the same force and effect as if made as of delivery of the Preferred SecuritiesCompletion.
(b) [Reserved]the representations and warranties given by the Purchaser Group in this agreement shall have been true, accurate and not misleading when made and shall be true, accurate and not misleading as of Completion with the same force and effect as if made as of Completion, except to the extent such representations and warranties are as of another date, in which case, such representations and warranties shall be true, accurate and not misleading as of that date with the same force and effect as if made as of Completion.
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser performed and JPMorgan Chase Bank, National Association, in form complied with its obligations and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).covenants under clause 5;
(d) The Purchaser the PRC Merger Authority shall have been furnished approved the opinion of MayerAcquisition, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.without attaching any conditions or obligations;
(e) The the Purchaser and its applicable Affiliates shall have received the opinion obtained all such consents, approvals and waivers, and licences and authorisations of ▇▇▇▇▇▇▇▇and satisfied all such filings and registrations, ▇▇▇▇▇▇ & Fingerwith any governmental or statutory agency or authority, P.A.in each case, special Delaware counsel as is deemed mandatory or necessary for the Delaware Trustee, dated the Closing Date, addressed to the consummation of this Transaction based on Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.’s knowledge after due inquiry;
(f) The the Purchaser shall have received deposited Completion Cash Payment in the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed Escrow Account one day prior to the Purchaser, in substantially the form set out in Annex D hereto.Completion Date;
(g) The Purchaser the applicable members of the Sellers Group shall have received the opinion of ▇▇▇▇▇▇▇▇obtained all necessary consents, ▇▇▇▇▇▇ & Fingerapprovals and waivers, P.A.and licences and authorisations of, special Delaware counsel for the Delaware Trusteeand satisfied all filings and registrations, dated the Closing Datewith, addressed any governmental or statutory agency or authority as may be relevant and contemplated herein to give effect to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.transactions contemplated by this agreement; and
(h) The Company no provision of any applicable law and no judgment, injunction, order or decree shall have furnished to prohibit the consummation of Completion or materially increase the costs of the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and consummation of the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityhereby.
Appears in 1 contract
Sources: Share Purchase Agreement (ASE Technology Holding Co., Ltd.)
Conditions. The obligations of the parties under this Purchase Agreement are Lenders to make Loans hereunder shall be subject to the satisfaction on and as of the Effective Date (or waiver by the Required Lenders in accordance with Section 9.08) of the following conditions:
(a) The representations and warranties contained herein Administrative Agent shall be accurate as have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) evidence satisfactory to the date Administrative Agent (which may include a facsimile transmission) that such party has signed a counterpart of delivery of the Preferred Securitiesthis Agreement.
(b) [Reserved]The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent, the Collateral Agent and the Lenders and dated the Effective Date) of (i) ▇▇▇▇▇ Day, counsel for Holdings and the Borrower, and (ii) local counsel for Holdings and the Borrower in each jurisdiction where a Mortgaged Property is located, in each case in form and substance reasonably satisfactory to the Administrative Agent. Each of Holdings and the Borrower hereby requests such counsel to deliver such opinion.
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), The Administrative Agent shall have delivered an opinionreceived (i) a copy of the certificate or articles of incorporation or other organizational documents, dated including all amendments thereto, of each Loan Party, certified as of a recent date by the Closing DateSecretary of State of the state of its organization, addressed and a certificate as to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchasergood standing of each Loan Party as of a recent date from such Secretary of State; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the CompanySecretary or Assistant Secretary of each Loan Party dated the Effective Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or comparable document of such Loan Party as in effect on the Effective Date and at the time of adoption of the resolutions described in clause (B) below, signed (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Chief Executive OfficerBoard of Directors or other governing body of such Loan Party authorizing the execution, President or a Vice President, delivery and Chief Financial Officer, Treasurer or Assistant Treasurer performance of the Company, and the Trust shall have furnished Loan Documents to the Purchaser which such Loan Party is a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, party and, in the case of the CompanyBorrower, as the borrowing hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or other organizational documents of such Loan Party have not been amended since the date of the copy certified by the Secretary of State furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) below andabove; and (iv) such other documents as the Administrative Agent may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Responsible Officer of each of Holdings and the Borrower, confirming the satisfaction of the conditions set forth in the case first sentence of each of paragraphs (l) and (m) and in paragraphs (e), (j), (k) (other than the Trustfinal sentence thereof), as to (in) below(other than the final sentence thereof) and (q) of this Article.
(e) At the time of and after giving effect to the Transactions to occur on the Effective Date, (i) the representations and warranties of each Loan Party set forth in this Purchase Agreement are the Loan Documents shall be true and correct in all material respects on and as of the Closing Effective Date with the same effect as if though made on and as of such date, except in the Closing Datecase of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects on and as of such prior date, and the Company and the Trust, as applicable, have 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; and
(ii) since October 31no Default or Event of Default shall have occurred and be continuing.
(f) The Administrative Agent shall have received a certificate, 2004 dated the Effective Date and signed by a Responsible Officer of Parent, to the effect that (i) the Transactions will not be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to any right to require any prepayment, repurchase or redemption of any obligation under, or give rise to any right of, or result in, any termination, cancellation, acceleration or right of renegotiation of any obligation under, any indenture, credit agreement or other material agreement or instrument to which Parent or any of its subsidiaries is a party or by which any of them or any of their assets are or may be bound and (ii) each of Holdings and the Subsidiaries has been duly designated as an “Unrestricted Subsidiary” under, and as defined below)in, there has the Existing Parent Term Credit Agreement.
(g) The Lenders shall have received, or been no material adverse change provided access to, (i) the audited and unaudited financial statements and opinion referred to in Section 3.05 and (ii) such other financial statements of the Acquired Company or the ▇▇▇▇▇ Springs Refining Business as shall have been furnished by or on behalf of the Seller to Parent or any of its Affiliates. The Administrative Agent shall have received a certificate, dated the Effective Date and signed by a Responsible Officer of each of Holdings and the Borrower, confirming satisfaction of the condition precedent set forth in clause (financial ii) above.
(h) The Administrative Agent shall have received a detailed business plan or other), earnings, business or assets projections of the Company Borrower and its subsidiaries taken as on a wholeconsolidated basis after giving effect to the Transactions for the years 2008 through 2014 and for the eight quarters beginning with the first quarter of 2008, whether or not arising from transactions occurring in each case in form reasonably satisfactory to the ordinary course of business (a “Material Adverse Change”)Administrative Agent.
(i) Subsequent Each of S&P and ▇▇▇▇▇’▇ shall have assigned a rating to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiescredit facility provided for herein.
(j) Prior Holdings shall have received cash proceeds of not less than $100,000,000 from the Holdings Contribution. Holdings shall have transferred all such cash proceeds to the Borrower as a contribution to the common equity of the Borrower.
(k) All consents and approvals required to be obtained from any Governmental Authority or other person in connection with the Acquisition and the other Transactions (including the IDB Consents) shall have been obtained, and all applicable waiting periods and appeal periods shall have expired, in each case without the imposition of any burdensome condition, and there shall not be any pending or, to the knowledge of Holdings or the Borrower, threatened actions, suits or proceedings by or before any Governmental Authority that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions. The Acquisition shall have been, or substantially concurrently with the funding of the Loans shall be, consummated in accordance with applicable law and the Stock Purchase Agreement (without giving effect to any amendments or other modifications of, or waivers under, the Stock Purchase Agreement (including any deemed waiver under Section 6.10 thereof) that, individually or in the aggregate, are adverse to the Lenders in any material respect and that have not been consented to by the Administrative Agent). The Merger shall have been, or substantially concurrently with the funding of the Loans shall be, consummated in accordance with applicable law, and the Administrative Agent shall have received evidence thereof reasonably satisfactory to it. The Administrative Agent shall have received a copy of the Stock Purchase Agreement and all certificates, opinions and other documents delivered thereunder, certified by a Responsible Officer of each of Holdings and the Borrower as being complete and correct.
(l) The Borrower shall have entered into the Revolving Credit Agreement, which shall provide, subject to the terms and conditions thereof, for revolving extensions of credit thereunder in an aggregate principal amount of at least $400,000,000, and the conditions to the obligations of the lenders thereunder to make loans and other extensions of credit on the Effective Date shall have been, or substantially concurrently with the funding of the Loans shall be, satisfied. The Administrative Agent shall have received a copy of the Revolving Loan Documents, certified by a Responsible Officer of the Borrower as being complete and correct, and the terms and conditions of the Revolving Loan Documents shall be substantially consistent with the revolving facility term sheet furnished to the Lenders prior to the Closing DateDate and otherwise reasonably satisfactory to the Administrative Agent. The Administrative Agent shall have received from the Revolving Collateral Agent a counterpart of the Intercreditor Agreement signed on behalf of the Revolving Collateral Agent (or evidence satisfactory to the Administrative Agent (which may include facsimile transmission) that the Revolving Collateral Agent has signed such a counterpart).
(m) The Crack Spread Hedging Agreement shall have been, or substantially concurrently with the funding of the Loans shall be, executed and delivered by the parties thereto and shall be in full force and effect. The Crack Spread Hedging Counterparty shall have, or substantially concurrently with the funding of the Loans shall, receive the Crack Spread Hedging Cash Collateral. The Administrative Agent shall have received a copy of the Crack Spread Hedging Agreement, certified by a Responsible Officer of the Borrower as being complete and correct.
(n) The Guarantee and Collateral Requirement shall be satisfied. The No-Offset Agreement, in the form contemplated by the Stock Purchase Agreement, shall have been, or substantially concurrently with the funding of the Loans shall be, executed and delivered by the Seller and shall be in full force and effect. The Collateral Agent shall have received a completed Perfection Certificate, dated the Effective Date and signed by a Responsible Officer of each of Holdings and the Borrower, together with all attachments contemplated thereby, including the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to Holdings and the Subsidiaries (and predecessors in interest thereto, including the Acquired Company and the Trust Seller) in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been, or substantially contemporaneously with the funding of Loans on the Effective Date will be, released.
(o) The Administrative Agent shall have furnished received Schedules 3.08, 3.10, 3.18, 3.20(a), 3.20(b) and 3.20(c) referred to in Article III.
(p) The Administrative Agent shall have received evidence that insurance required by Section 5.02 is in effect, together with endorsements naming the Collateral Agent, for the benefit of the Secured Parties, as loss payee thereunder and naming the Administrative Agent, the Collateral Agent and the Lenders as additional insured, in each case to the Purchaser and its counsel extent required by Section 5.02.
(q) Immediately after giving effect to such further informationTransactions, certificates and documents as the Purchaser or its counsel may reasonably request. If (i) no Subsidiary shall have outstanding any of the conditions specified in Preferred Equity Interests, (ii) neither Holdings nor any Subsidiary shall have any Indebtedness, other than (A) Indebtedness incurred under this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any (B) Indebtedness incurred under the Revolving Credit Agreement and (C) Indebtedness set forth on Schedule 6.01, and (iii) the Borrower shall have no outstanding Equity Interests other than common stock owned by Holdings and the Permitted Compensation Incentive Equity Interests.
(r) The Administrative Agent shall have received a certificate, dated the Effective Date and signed by the chief financial officer of the opinionsHoldings, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance reasonably satisfactory to the Purchaser Administrative Agent, certifying that Holdings and the Subsidiaries, on a consolidated basis after giving effect to the Transactions, are solvent.
(s) The Administrative Agent shall have received all fees and other amounts due and payable on or its prior to the Effective Date, including, to the extent invoiced, payment or reimbursement of all fees and expenses (including fees, charges and disbursements of counsel) required to be paid or reimbursed by Holdings or the Subsidiaries under the Commitment Letter, this Purchase Agreement the Fee Letter or any Loan Document.
(t) The Lenders shall have received, at least five Business Days prior to the Effective Date, all documentation and all other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Section 326 of the Purchaser’s obligations hereunder may be canceled at USA Patriot Act. The Administrative Agent shall notify Holdings, the Closing Date by Borrower and the Purchaser. Notice Lenders of the Effective Date, and such cancellation notice shall be given to the Company, the Guarantor conclusive and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitybinding.
Appears in 1 contract
Conditions. The obligations Incremental Commitments shall become effective as of the parties under this Purchase Agreement are subject to the following conditionsIncrease Effective Date; provided that:
(ai) The each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) no Default shall have occurred and be continuing or would result from the borrowings to be made on the Increase Effective Date;
(iii) the representations and warranties contained herein shall be accurate in Article V and each Loan Document are true and correct in all material respects on and as of the date Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of delivery such earlier date, and except that for purposes of this Section 2.19(b), the Preferred Securitiesrepresentations and warranties contained in Section 5.05(a) and Section 5.05(b) shall be deemed to also refer to the most recent financial statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(biv) [Reserved].
on a pro forma basis (c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, andassuming, in the case of Incremental Revolving Commitments, that such Incremental Revolving Commitments are fully drawn), the Company, as to (i) and (ii) below andBorrower shall be in compliance with the covenant set forth in Section 7.11, in the each case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Agreement are true and correct on and as of the Closing Date end of the latest fiscal quarter for which internal financial statements are available;
(v) the Borrower shall make any breakage payments in connection with any adjustment of Revolving Loans pursuant to Section 2.19(c);
(vi) the same effect as if made Borrower shall deliver or cause to be delivered officer’s certificates and legal opinions of the type delivered on the Closing DateDate to the extent reasonably requested by, and in form and substance reasonably satisfactory to, the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateAdministrative Agent; and
(iivii) since October 31, 2004 (as defined below), there has been no material adverse change in upon the condition (financial or other), earnings, business or assets reasonable request of the Company and its subsidiaries taken as a whole, whether Administrative Agent or not arising from transactions occurring in the ordinary course of business any Lender made at least five (a “Material Adverse Change”).
(i5) Subsequent Business Days prior to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Increase Effective Date, the Company and the Trust Borrower shall have furnished provided to the Purchaser and its counsel Administrative Agent or such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, Lender (as the case may be), and not by the Administrative Agent or such trustee or officer Lender (as the case may be) shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least two (2) Business Days prior to the Increase Effective Date and (y) at least two (2) Business Days prior to the Increase Effective Date, any individual capacityLoan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to the Administrative Agent and each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
Appears in 1 contract
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment No. 6 shall be subject to the following conditions:fulfillment by the Borrowers, in a manner satisfactory to the Administrative Agent and the Lender Parties, of all of the conditions precedent set forth in this Article III, and the date on which all such conditions shall have been fulfilled to the satisfaction of the Administrative Agent and the Lender Parties, and this Amendment No. 6 shall have become effective, shall be herein called the "Effective Date".
(a) The representations and warranties contained herein and each other agreement, instrument, certificate or other writing delivered to the Administrative Agent or any Lender Party pursuant hereto or to the Credit Agreement shall be accurate correct on and as of the date hereof after giving effect to this Amendment No. 6 as though made on and as of delivery of the Preferred Securities.
such date, (b) [Reserved].
no Default or Event of Default shall have occurred and be continuing on the Effective Date or would result from the taking effect of this Amendment No. 6, or the transactions contemplated hereby, and (c) all of the conditions precedent to the effectiveness of this Amendment No. 6 shall have been satisfied; and the execution and delivery of this Amendment No. 6 constitutes the Borrowers' certification to the Lender Parties and the Administrative Agent as to the truth, accuracy and completeness of the matters set forth in this Section 3.1.
3.2 The Administrative Agent shall have received copies of resolutions adopted by MediaBay's board of directors, authorizing the execution, delivery and performance of the Amendment No. 6 Documents, and all documents incidental thereto shall be satisfactory to the Administrative Agent, the Lender Parties and their counsel, and each such person shall have received all such information and such counterpart originals or certified copies of documents as may have been reasonably requested.
3.3 The Borrowers shall have:
(a) paid to Winston & Strawn LLP counsel to the Adminis▇▇▇▇▇▇e Agent, and Richards Spears Kibbe & Orbe LLP, ▇▇▇▇▇▇▇▇▇ ▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇000-▇, ▇▇▇▇▇▇ & FingerLimited, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser all outstanding fees and JPMorgan Chase Bank, National Association, expenses incurred in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President connection with this Amendment No. 6 or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Dateotherwise; and
(iib) since October 31otherwise complied in all respects with the terms hereof and of any other agreement, 2004 (as defined below)document, there has been no material adverse change instrument or other writing to be delivered by any Borrower in the condition (financial or other), earnings, business or assets connection herewith.
3.4 Each of the Company parties hereto shall have executed and its subsidiaries taken as a whole, whether or not arising from transactions occurring in delivered this Amendment No. 6 to the ordinary course of business (a “Material Adverse Change”)Administrative Agent.
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel 3.5 All proceedings in connection with the Operative Documents and the transactions contemplated hereby by this Amendment No. 6 and thereby all documents incidental thereto shall be deemed reasonably satisfactory to be a representation and warranty of the TrustAdministrative Agent, the Guarantor and/or the Company, as the case may beLender Parties and their respective counsel, and not by each such trustee Person shall have received all such information and such counterpart originals or officer in any individual capacitycertified copies of documents as may have been reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Mediabay Inc)
Conditions. The obligations (a) Each of the parties under this Purchase Agreement are subject following is a condition precedent to the following conditionsinitial Borrowing hereunder:
(ai) The representations Lender shall have received from the secured creditor described in Schedule “D” hereto, a postponement and warranties contained herein subordination of the security held by such secured party in favour of the Lender;
(ii) The Lender shall have received from CBSC Capital an acknowledgement in favour of the Lender and its successors and assigns, in a form acceptable to the Lender, specifying the collateral which is the subject matter of the PPSA registration in its favour, and confirming that such secured creditor will not take any new security which ranks or purports to rank ahead of the Security Agreements pursuant to such registration;
(iii) The Borrower shall have opened its Initial Blocked Account and shall have entered into a blocked account agreement satisfactory to the Lender in its discretion with respect to such account;
(iv) The Security Agreements shall have been duly executed and delivered and, where required, registered;
(v) The Lender shall have received the Additional Closing Documents;
(vi) At or prior to the time the advance in question is to be made, no Default or Event of Default shall have occurred and be continuing;
(vii) The Lender shall have completed all of its due diligence investigations and shall, in its sole discretion, be satisfied with the results of same;
(viii) The Lender shall have received an appraisal satisfactory to it in its sole discretion with respect to the Borrower’s Eligible Inventory;
(ix) The Lender shall have received evidence satisfactory to it that all insurance coverage contemplated in this Agreement is then in place;
(x) The Lender shall have received payment of all fees (including all legal fees of the Lender), expenses and other amounts then payable under the Credit Documents;
(xi) The Borrower and BBI shall have entered into a Master Services Agreement in the form attached hereto as Schedule “E”;
(xii) The Borrower and BBI shall have entered into a License Agreement with respect to, inter alia, trademarks and other intellectual property in the form attached hereto as Schedule “F”;
(xiii) The Lender and BBI shall have entered into Rights Agreements in the form attached hereto as Schedules “G” and “H”;
(xiv) The Lender shall have received the deposit referred to in Paragraph 24 of this Agreement from the Borrower;
(xv) The Lender shall have received from the Borrower the facility fee referred to in Paragraph 11(a) of this Agreement;
(xvi) The board of directors of BBI shall, by no later than 2:30 p.m. ET on May 8, 2009, have approved the amendments and restatements contemplated in the U.S. Credit Amending Agreement becoming effective on or before May 11, 2009 and shall have approved the U.S. Credit Agreement and its coming into force on or before May 11, 2009 and the Borrower shall have delivered to the Lender a letter from BBI’s general counsel in a form acceptable to Lender certifying that said approvals have been properly given by BBI’s board of directors;
(xvii) Contemporaneously with the execution of this Agreement, the Lender and the Borrower shall have entered into an agreement, in a form acceptable to the Lender, pursuant to which the Borrower agrees that if it at any time prior to payment and repayment in full of all of the Borrower’s liabilities and obligations owing and payable to the Lender pursuant to this Agreement wishes to arrange new or additional debt financing (including financing of any future acquisitions by the Borrower) it shall acknowledge that it requires the consent of the Lender and will further agree that the Lender shall be accurate as granted a first right of refusal to provide such debt financing;
(xviii) There shall not have occurred or become known any Material Adverse Change with respect to the Borrower or any condition or event that could reasonably be expected to result in a Material Adverse Change with respect to the Borrower, in each case, since January 4, 2009;
(xix) There shall not have occurred or become known any Material Adverse Change with respect to BBI or any condition or event that could reasonably be expected to result in a Material Adverse Change with respect to BBI, in each case, since January 4, 2009 (provided that the Lender acknowledges and accepts the “going concern” qualification on BBI’s financial statements for its year ended January 4, 2009 and that a similar qualification will be included in BBI’s financial statements for its year ended January 3, 2010); and
(xx) No other event shall have occurred that, in the Lender’s sole discretion, materially adversely affects or could materially adversely affect either: (i) the business, assets, liabilities, prospects, financial condition or operations of the date Borrower or of delivery BBI, or (ii) the value of the Preferred SecuritiesCollateral which is the subject matter of the Security Agreements.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for Each of the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed following is a condition precedent to the Purchaser transfer contemplated in Paragraph 6(b) of this Agreement and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.subsequent Borrowing hereunder:
(i) All of the conditions contained in Paragraph 14(a) shall have been satisfied and shall as at the time of the making of the subsequent advance in question continue to be satisfied;
(ii) All of the representations and warranties in this Purchase Agreement of the Borrower herein are true and correct on and as of the Closing Date with the same effect such date as if though made on and as of such date, except in the Closing Datecase of a representation or warranty of the Borrower that is made with respect to a specific date, in which case such representation or warranty shall have been true on such date;
(iii) No event or condition has occurred and is continuing, or would result from such Borrowing, which constitutes or which, with notice, lapse of time, or both, would constitute, a breach of any covenant or other term or condition of this Agreement or of any Credit Document. For the Company and purposes of this Paragraph, the Trustcovenants referred to in Paragraph 18(d) of this Agreement shall be deemed to have been in effect since the execution of this Agreement notwithstanding Paragraph 18(d) of this Agreement;
(iv) Such Borrowing will not violate any Applicable Law then in effect;
(v) If such subsequent advance is a Facility B Loan advance, as applicable, the Lender shall have complied with all received the agreements and satisfied all the conditions on its part facility fee referred to be performed or satisfied in Paragraph 11(b) of this Agreement at or prior to the Closing Datetime of the making of the advance in question;
(vi) No Default or Event of Default shall have occurred and be continuing;
(vii) The amendments and restatements provided for in the U.S. Credit Amending Agreement shall have become effective as contemplated therein and the U.S. Credit Agreement shall be in full force and effect and the Borrower shall have delivered to the Lender a letter from BBI’s general counsel in a form acceptable to the Lender certifying to such effect;
(viii) There shall not have occurred or become known any Material Adverse Change with respect to the Borrower or any condition or event that could reasonably be expected to result in a Material Adverse Change with respect to the Borrower, in each case, since January 4, 2009;
(ix) There shall not have occurred or become known any Material Adverse Change with respect to BBI or any condition or event that could reasonably be expected to result in a Material Adverse Change with respect to BBI, in each case, since January 4, 2009 (provided that the Lender acknowledges and accepts the “going concern” qualification on BBI’s financial statements for its year ended January 4, 2009 and that a similar qualification will be included in BBI’s financial statements for its year ended January 3, 2010); and
(x) No other event shall have occurred that, in the Lender’s sole discretion, acting reasonably, materially adversely affects or could materially adversely affect either: (i) the business, assets, liabilities, prospects, financial condition or operations of the Borrower or of BBI, or (ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets value of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Collateral.
(ic) Subsequent to The making of Borrowings hereunder, without the execution fulfillment of this Purchase Agreementone or more conditions set forth in Paragraphs 14(a) or 14(b), there shall not have been constitute a waiver of any changesuch condition, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished Lender reserves the right to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice require fulfillment of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel condition in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitysubsequent Borrowing.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are to consummate the Acquisition will be subject to the fulfilment of the following conditions:
(a) The representations and warranties contained herein shall be accurate as the receipt of the date of delivery of the Preferred Securities.all necessary approvals;
(b) [Reserved].the latest available financial statements of Gilla are true and correct and have been prepared in accordance with generally accepted accounting principles consistently applied;
(c) the audited and unaudited financial statements of ▇▇▇▇▇▇ required to complete the Acquisition are delivered to Gilla on or before January 31, 2014 and such financial statements are true and correct and have been;
(d) there will be no adverse material change in the business, affairs or operations of Gilla between the date of the latest available financial statements of Gilla and the Closing;
(e) there will be no adverse material change in the business, affairs or operations of ▇▇▇▇▇▇ between the date of the latest available financial statements of ▇▇▇▇▇▇ and the Closing;
(f) the review to the sole satisfaction of ▇▇▇▇▇▇ of the financial condition, business, properties, title, assets and affairs of Gilla;
(g) the review to the sole satisfaction of Gilla of the ▇▇▇▇▇▇ Assets and of the financial condition, business, properties, title, assets and affairs of ▇▇▇▇▇▇;
(h) the approval of the Acquisition by the board of directors of each of Gilla and ▇▇▇▇▇▇;
(i) amounts owed by ▇▇▇▇▇▇ to Gilla are repaid or accounted for appropriately as a liability;
(j) the ▇▇▇▇▇▇ security holders will have received certificates representing the Gilla Common Shares to which they are entitled pursuant to paragraph 3;
(k) the representations and warranties contained herein and in the Formal Agreement shall be deemed to have been made again on the Closing Date and shall then be true and correct in all material respects as of that date;
(l) no inquiry or investigation (whether formal or informal) in relation to Gilla or ▇▇▇▇▇▇ or their directors or officers, shall have been commenced or threatened by any officer or official of the OTC or any securities commission, or similar regulatory body having jurisdiction such that the outcome of such inquiry or investigation could have a material adverse effect on applicable party; and
(w) each party making available all relevant financial statements, documents, reports, files, books, papers, documents and agreements, and all other relevant information relating to its business, assets, operations, prospects, financial condition and affairs, such that the other party shall satisfactorily complete its due diligence review of such materials on the later of: (i) the date on which the filing statement in respect of the Acquisition is filed on ▇▇▇▇▇ with the U.S. Securities and Exchange Commission and in accordance with the policies of OTC; and (i) such other date as agreed to by the parties. The conditions listed in subparagraphs (b), (d), (f) and (j) are for the sole benefit of and may be waived only by, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers . The conditions listed in subparagraphs (the “Company Counsel”c), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇), ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel are for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser sole benefit of and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) may be waived only by Gilla. The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any balance of the conditions specified in this Section 3 shall not have been fulfilled when paragraph 16 are for the benefit of, and may be waived by, the parties hereto as provided in this Purchase Agreement, or if any they relate to the obligations of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance other parties to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityperform same.
Appears in 1 contract
Sources: Acquisition Agreement (Gilla Inc.)
Conditions. The This Agreement and the respective rights and obligations of the parties under to this Purchase Agreement are subject conditional upon the Note Purchaser having confirmed to the Issuer that it has received (or has waived the right to receive) on or before the Closing Date all of the following conditionsin form and substance satisfactory to it:
(a) The representations and warranties contained herein shall be accurate as evidence satisfactory to the Note Purchaser that all conditions precedent to the Loan Sale Agreement have been or (subject to the issue of the date of delivery of the Preferred Securities.Notes) will be satisfied;
(b) [Reserved].evidence that this Agreement and the Transaction Documents have been executed and delivered by the respective parties thereto;
(c) ▇▇▇▇▇▇the delivery to the Note Purchaser on or before the Closing Date of:
(i) legal (and where applicable, ▇▇▇▇▇tax) opinions dated the Closing Date in such form and with such contents as the Note Purchaser, the Security Trustee and the Note Trustee may require from:
(A) an English law transaction opinion from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed legal advisors to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor Seller and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, Issuer in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).England;
(dB) The Purchaser shall have been furnished the an Irish law opinion of Mayer, Brown, from ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed legal advisors to the Purchaser, Issuer in substantially the form set out in Annex D hereto.Ireland; and
(gC) The Purchaser shall have received the a Greek law true sale and Seller capacity opinion of ▇▇▇▇▇▇▇▇from Karatzas & Partners, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed legal advisor to the Purchaser and JPMorgan Chase Bank, National Association, Seller in substantially the form set out in Annex E hereto.Greece;
(hd) The Company shall have furnished to the Purchaser a certificate copy, certified by a duly authorised signatory of the CompanyIssuer, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.of:
(i) the representations and warranties in this Purchase Agreement are true and correct on and as constitutional documents of the Closing Date with Issuer;
(ii) the same effect as if made on certificate of incorporation of the Closing Date, Issuer;
(iii) the list of authorised signatories (and specimen signatures of each relevant authorised signatory) of the Issuer;
(iv) the resolutions of the board of directors of the Issuer authorising the execution of this Agreement and the Company other Transaction Documents to which the Issuer is expressed to be a party and the Trustperformance of the transactions contemplated thereby and the issue of the Notes;
(e) a certificate of solvency of the Issuer given by a duly authorised signatory of the Issuer;
(f) a copy, as applicablecertified by a duly authorised signatory of the Seller, have complied with all of:
(i) the agreements and satisfied all current Articles of Association of the conditions on its part to be performed or satisfied at or prior to Seller;
(ii) a certificate of solvency of the Closing DateSeller from the General Commercial Registry;
(iii) the certificate of incumbency of the Seller;
(iv) a certificate of good standing of the Seller;
(v) a certificate from the European Central Bank regarding the Seller’s banking license; and
(iivi) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets resolutions of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in board of directors of the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to Seller authorising the execution of this Purchase AgreementAgreement and the other Transaction Documents to which the Seller is expressed to be a party and the performance of the transactions contemplated thereby;
(g) the delivery of the Global Notes in respect of the Class A Notes to the common depositary for Euroclear and Clearstream, Luxembourg, for credit on the Closing Date to the accounts of Euroclear and Clearstream, Luxembourg with such common depositary; and
(h) there shall not have been any changeis an agreement between the Issuer and the ICSDs with respect to the settlement in the ICSDs of Class A Notes in new global note form, provided, however, that the Note Purchaser may in its sole and absolute discretion, waive compliance with the whole or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any part of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityClause 4.
Appears in 1 contract
Sources: Note Purchase Agreement
Conditions. The obligations consummation of the parties under transactions set forth in Sections 3 through 5 of this Purchase Agreement are shall be subject to the satisfaction of the following conditionsconditions precedent:
(a) The representations Administrative Agent (or its counsel) shall have received from the Borrower and warranties contained herein shall be accurate as the Required Restatement Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, which, when taken together, bear the signatures of each of the date of delivery of Borrower, the Preferred SecuritiesAdministrative Agent and the Required Restatement Lenders.
(b) [Reserved].
The Administrative Agent shall have received a favorable written opinion (caddressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇▇▇ Day, ▇▇▇counsel for the Borrower, substantially in the form of Exhibit B-1 and (ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Chtd., Nevada local counsel for the Sellers Borrower, substantially in the form of Exhibit B-2 and, in the case of each such opinion required by this paragraph, covering such other matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions as the Required Restatement Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(the “Company Counsel”), c) The Administrative Agent shall have delivered an opinion, dated received such documents and certificates as the Closing Date, addressed Administrative Agent or its counsel may reasonably request relating to the Purchaser organization, existence and JPMorgan Chase Bankgood standing of each Loan Party, National Associationthe authorization of the Restatement Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions, all in form and substance reasonably satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form Administrative Agent and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)its counsel.
(d) The Purchaser Administrative Agent shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaserreceived a certificate, dated the Closing DateRestatement Effective Date and signed by the President, addressed to a Vice President or a Financial Officer of the Purchaser Borrower, confirming compliance with the conditions set forth in paragraphs (a) and JPMorgan Chase Bank(b) of, National Associationand including the certifications required by paragraph (c) of, in substantially Section 4.02 of the form set out in Annex B heretoRestated Credit Agreement.
(e) The Purchaser Administrative Agent shall have received all fees and other amounts due and payable in connection with this Agreement and the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Existing Credit Agreement on or prior to the Delaware Trustee, dated the Closing Restatement Effective Date, addressed including, to the Purchaserextent invoiced, JPMorgan Chase Bankreimbursement or payment of all reasonable out-of-pocket expenses (including fees, National Association, the Delaware Trustee charges and the Company, in substantially the form set out in Annex C heretodisbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Purchaser Collateral and Guarantee Requirement shall be satisfied after giving effect to the Restatement Transactions, and in connection therewith the Administrative Agent shall have received (i) a completed Perfection Certificate with respect to the opinion Loan Parties dated the Restatement Effective Date and signed by an executive officer or Financial Officer of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPthe Borrower, special counsel for together with all attachments contemplated thereby and (ii) to the Property Trustee extent requested by the Administrative Agent, the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) in the jurisdictions contemplated by the Perfection Certificate and the Indenture Trustee, dated copies of the Closing Date, addressed financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Purchaser, in substantially Administrative Agent that the form set out in Annex D heretoLiens indicated by such financing statements (or similar documents) are permitted by the Collateral Agreement.
(g) The Purchaser Administrative Agent shall have received evidence that the opinion insurance required by Section 5.07 of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated Restated Credit Agreement and the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, Security Documents is in substantially the form set out in Annex E heretoeffect.
(h) The Company A Reaffirmation Agreement substantially in the form of Exhibit C hereto shall have furnished to the Purchaser a certificate of the Company, signed been executed and delivered by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowparty thereto.
(i) The Administrative Agent shall have received a Borrowing Request that satisfies the representations and warranties in this Purchase Agreement are true and correct on and as requirements of Section 2.03 of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed Existing Credit Agreement or satisfied at or prior is otherwise satisfactory to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent Administrative Agent with respect to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.Tranche A1 Term
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Cumulus Media Inc)
Conditions. The This Amendment (including the amendments set forth in ARTICLE I) and the obligations of the parties under 2023 Replacement Term Lenders to make 2023 Replacement Term Loans shall become effective when all of the conditions set forth in this Purchase ARTICLE IV shall have been satisfied or waived in accordance with Section 16.01 of the Existing Credit Agreement (the date such conditions are subject to satisfied or waived, the following conditions:“Amendment Date”):
(a) The representations Agent (or its counsel) shall have received (i) from each 2023 Replacement Term Loan Exchange Lender, each 2023 Post-Closing Option Lender and warranties contained herein shall be accurate as each 2023 Additional Replacement Term Lender, (ii) from Lenders that constitute Majority Lenders and (iii) from each of the date Loan Parties, either (x) a counterpart of this Amendment signed on behalf of such party (or a 2023 Replacement Term Loan Consent) or (y) written evidence reasonably satisfactory to the Agent (which may include delivery of the Preferred Securitiesa signed signature page of this Amendment by facsimile or other means of electronic transmission (e.g., “pdf”) that such party has signed a counterpart of this Amendment (or a 2023 Replacement Term Loan Consent).
(b) [Reserved]The Agent shall have received from the Loan Parties a certified copy of (i) the charter documents and by-laws (or equivalent governing documents) of each Loan Party organized in Canada, the United States of America or the United Kingdom (each, an “Applicable Loan Party”); (ii) the resolutions of the board of directors (or any duly authorized committee or other governing body thereof) or of the shareholders, as the case may be, of each Applicable Loan Party approving the repricing of the Term Loans and other matters provided for in this Amendment and approving the entering into of all other related Credit Documents to which they are a party and the completion of all transactions contemplated thereunder; (iii) all other instruments evidencing necessary corporate, company or partnership action of each Applicable Loan Party and of any required Authorization with respect to such matters; and (iv) certifying the names and true signatures of its officers authorized to sign this Amendment and the other Credit Documents manually or by mechanical means; provided that a certificate from each such Applicable Loan Party certifying that there have been no changes to any of the foregoing items or matters since the date of the last certified copies thereof delivered by such Applicable Loan Party in connection with the Existing Credit Agreement shall be deemed to satisfy the condition in this Section 4.01(b).
(c) The Agent shall have received a certificate of status, compliance, good standing or like certificate with respect to each Applicable Loan Party issued by the appropriate government official in the jurisdiction of its incorporation or organization.
(d) Each of the representations and warranties contained in ARTICLE III above shall be true and correct.
(e) The Agent shall have received a certificate, dated as of the Amendment Date and signed by a Responsible Officer of the Borrower, confirming the accuracy of the representations and warranties set forth in ARTICLE III.
(f) The Borrower shall have paid to the Agent, for the ratable account of the Existing Term Lenders immediately prior to Amendment Date, simultaneously with the making of the 2023 Replacement Term Loans, all accrued and unpaid interest on their respective Existing Term Loans to, but not including, the Amendment Effective Date.
(g) The Agent shall have received, to the extent invoiced at least three Business Days prior to the Amendment Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (but excluding any fees, charges and disbursements of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Credit Document on or prior to the Amendment Date (which amounts may be offset against the proceeds of the Term Loans made hereunder).
(h) the Administrative Agent shall have received reasonably satisfactory opinions of (i) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Arsht & ▇▇▇▇▇▇▇ LLP, special Delaware counsel to the Loan Parties, (ii) Osler, ▇▇▇▇▇▇ & Harcourt LLP, special Ontario counsel to the Loan Parties, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special Nova Scotia counsel to the Loan Parties, and (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special New York and United Kingdom counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the TrustLoan Parties, in each case dated as is relevant to confirm, inter alia, corporate existence, due authorization, non-contravention of other Debt of any Loan Party or any of its Subsidiaries (other than Exempt Immaterial Subsidiaries) which is outstanding in an aggregate principal amount exceeding $125,000,000, execution by the Closing Date, and, in the case Applicable Loan Parties and enforceability of the CompanyAmendment, as to (i) and (ii) below and, in the case validity and perfection of the Trust, as Encumbrances created under the applicable Credit Documents after giving effect to (i) belowthis Amendment.
(i) the representations and warranties in this Purchase Agreement are true and correct on and The Administrative Agent shall have received a certificate, dated as of the Closing Amendment Date with the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior signed by a Financial Officer of Open Text attesting to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets Solvency of the Company Open Text and its subsidiaries Subsidiaries, taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust The Agent shall have furnished to received an Accommodation Notice for the Purchaser and its counsel such further information, certificates and documents as Accommodation occurring on the Purchaser or its counsel may reasonably request. If any Amendment Effective Date in accordance with the delivery requirements under Section 3.02 of the conditions specified in this Section 3 shall not have been fulfilled when and Existing Credit Agreement (or such later time as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date agreed by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust Agent in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityits discretion).
Appears in 1 contract
Sources: Credit Agreement (Open Text Corp)
Conditions. (1) The obligations Purchaser shall and shall procure that his agents shall forthwith upon the signing of this Agreement conduct such review of the parties assets, liabilities, operations and affairs both of the Company and the Joint Venture Company as it may reasonably consider appropriate and the Vendor shall provide and procure the Company and/or the Joint Venture Company to provide such assistance as the Purchaser or his agents may reasonably require in connection with such review so as to enable the review to be completed on or before 12:00 noon on the date falling 30 days from the date of this Agreement or such later date as the Vendor and the Purchaser may agree under Clause 3.3.
(2) The Vendor shall and shall procure that his agents shall forthwith upon the signing of this Purchase Agreement are subject conduct such review of the assets, liabilities, operations and affairs of the Purchaser and the Parent as it may reasonably consider appropriate and the Purchaser and the Parent shall provide such assistance as the Vendor or their respective agents may reasonably require in connection with such review so as to enable the following conditionsreview to be completed on or before 12:00 noon on the date falling 30 days from the date of this Agreement or such later date as the Vendor and the Purchaser may agree under Clause 3.3.
3.2 Completion is conditional upon:
(a1) The representations the Purchaser being satisfied at its sole and warranties contained herein shall be accurate as absolute discretion with the results of the date of delivery due diligence review to be conducted under Clause 3.1(1);
(2) the Vendor being satisfied at their sole and absolute discretion with the results of the Preferred Securities.due diligence review to be conducted under Clause 3.1(2);
(b3) [Reserved].the Vendor's Warranties (save and except the Vendor's Schedule of Exceptions) remaining true and accurate in all respect;
(c4) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers Purchaser's Warranties (save and except the “Company Counsel”), shall have delivered Purchaser's Schedule of Exceptions) remaining true and accurate in all respect;
(5) the Purchaser's receipt of an opinion, dated opinion from each of the Closing Date, addressed to Vendor's Solicitors and a legal firm practicing the Purchaser and JPMorgan Chase Bank, National Association, laws of the PRC regarding the transactions contemplated hereby in form and substance reasonably satisfactory to the Purchaser; ;
(ii6) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement or (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(7) the Company parties shall have furnished received all authorizations, consents, and approvals of governmental authorities and third parties that are necessary in order to complete the Purchaser transactions contemplated hereby;
(8) the opinion of the Company’s General Counsel Company and Minghua Investment shall have entered into a stockholders agreement or similar agreement in form and substance reasonably satisfactory to the Purchaser; and (iii) Irvine Law Groupparties to this Agreement pursuant to which, P.C.among other things, special tax counsel Minghua Investment will grant a perpetual irrevocable proxy to the Guarantor Company which permits the Company to vote all of the shares of capital stock of the Joint Venture Company held by it on all matters coming before the stockholders of the Joint Venture Company for a vote;
(9) the Parent and the Vendor shall have delivered an opinion entered into a registration rights agreement in form and substance reasonably satisfactory to the Purchaser. In rendering their opinion, parties to this Agreement pursuant to which the Company Counsel may rely as Parent shall grant to factual matters upon certificates or other documents furnished by officers, directors and trustees the Vendor certain rights with respect to the registration of 28,000,000 Consideration Shares which form part of the Company, Purchase Consideration;
(10) Vendor shall have delivered the Guarantor Vendor's Schedule of Exceptions in a form reasonably satisfactory to the Purchaser as contemplated by Clause 7.11 of this Agreement and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion delivered a Purchaser's Schedule of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed Exceptions in a form reasonably satisfactory to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion Vendor as contemplated by Clause 8.11 of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateAgreement; and
(ii11) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust Vendor shall have furnished delivered to the Purchaser consolidated audited financial statements for the Company prepared in accordance with US Generally Accepted Accounting Principles for the period from incorporation until the Last Accounts Date and its counsel such further information, certificates financial statements shall be in a form suitable for filing with the U.S. Securities and documents Exchange Commission as required by Form 8-K promulgated under the Purchaser or its counsel may reasonably request. Securities Act.
3.3 If any of the conditions specified set out in Clause 3.2 has not been satisfied on or before 12:00 noon on the date falling 30 days from the date of this Section 3 Agreement or such later date as both the Purchaser and the Vendor may agree, this Agreement shall not cease and terminate (save and except Clause 11 which shall continue to have been fulfilled when full force and as provided in this Purchase Agreement, or if any effect) and none of the opinions, certificates and documents mentioned above or elsewhere in parties to this Purchase Agreement shall not be reasonably satisfactory in form have any obligations and substance to the Purchaser liabilities hereunder against or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by towards one another save for any trustee antecedent breaches of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityterms hereof.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Shares (Panagra International Corp/)
Conditions. The obligations (a) Conditions Precedent to the Effectiveness of the parties under Commitments. ------------------------------------------------------------ It is agreed that the respective Commitments of each Loan Participant and the effectiveness of this Purchase Agreement are is subject to the satisfaction prior to or on the Effective Date of the following conditionsconditions precedent:
(ai) The representations following documents shall have been duly authorized, executed and warranties contained herein delivered by the respective party or parties thereto, shall each be satisfactory in form and substance to such Loan Participant and shall be accurate as in full force and effect and executed counterparts shall have been delivered to such Loan Participant and its counsel:
(1) the Mortgage;
(2) a copy of each of the date of delivery Purchase Agreements certified by the Secretary or an Assistant Secretary of the Preferred SecuritiesBorrower as being a true and accurate copy of the same;
(3) the Consent and Agreement and the Engine Consent and Agreement;
(4) such Loan Participant's Loan Certificate; and
(5) the Remarketing Agreement.
(bii) [Reserved]Such Loan Participant shall have received the following, in each case in form and substance satisfactory to it:
(1) a certified copy of the Articles of Incorporation and Bylaws of the Borrower and a copy of resolutions of the board of directors of the Borrower or the executive committee thereof, certified by the Secretary or an Assistant Secretary of the Borrower, duly authorizing the execution, delivery and performance by the Borrower of this Agreement, the Mortgage and each other document required to be executed and delivered by the Borrower on each Delivery Date in accordance with the provisions hereof and thereof; and
(2) a certificate of the Borrower as to the Person or Persons authorized to execute and deliver this Agreement, the other Operative Documents, and any other documents to be executed on behalf of the Borrower in connection with the transactions contemplated hereby and as to the signature of such person or persons.
(ciii) Such Loan Participant shall have received opinions addressed to such Loan Participant and the Security Agent from ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President and General Counsel for the Borrower, Fulbright & ▇▇▇▇▇▇▇▇, special counsel to Borrower, and Kennedy, Covington, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, L.L.P., special North Carolina counsel for to Borrower, each in form and substance reasonably satisfactory to the Sellers addressees thereof.
(the “Company Counsel”), iv) Such Loan Participant shall have delivered received an opinion, dated the Closing Date, opinion addressed to such Loan Participant and the Purchaser Security Agent from counsel to Manufacturer, in respect of the Boeing Purchase Agreement and JPMorgan Chase Bankthe Consent and Agreement, National Association, in form and substance reasonably satisfactory to the addressees thereof.
(v) Such Loan Participant shall have received evidence in form and substance satisfactory to such Loan Participant that the Purchaser; aggregate amount of Advances in connection with each Aircraft shall be sufficient when paid to the Manufacturer in accordance with the Credit Agreement to satisfy the obligation of the Borrower with respect to all advance payments due and payable for each such Aircraft under the Boeing Purchase Agreement.
(iivi) the Company Such Loan Participant shall have furnished to the Purchaser the opinion of the Company’s General Counsel received evidence in form and substance reasonably satisfactory to such Loan Participant that the Purchaser; rights of any lessee or purchaser of the Aircraft pursuant to any existing contract between the Borrower or any of its Affiliates and (iii) Irvine Law Group, P.C., special tax counsel such lessee or purchaser shall not conflict with and shall be subordinate to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees rights of the Company, Security Agent under the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)Mortgage.
(dvii) The Purchaser Each Senior Loan Participant shall have received executed copies of the Manufacturer Financing Letter and the Midway Letter.
(viii) In respect of Advances paid prior to the Effective Date, any liens over the Mortgage Estate granted by the Borrower to finance such Advances shall be released and terminated.
(ix) A Uniform Commercial Code financing statement or statements covering all the security interests created by or pursuant to the granting clause of the Mortgage shall have been furnished executed and delivered by the Borrower, and such financing statement or statements shall have been duly filed in all places deemed necessary or advisable in the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the PurchaserSenior Loan Participants or the Junior Loan Participant, dated and any additional Uniform Commercial Code financing statements deemed advisable by any Loan Participant or its counsel shall have been executed and delivered by the Closing Date, addressed to the Purchaser Borrower and JPMorgan Chase Bank, National Associationduly filed and all other action shall have been taken as is deemed necessary or advisable, in substantially the form set out opinion of counsel for the Senior Loan Participants or the Junior Loan Participant, to establish and perfect the Security Agent's security interest in Annex B heretoeach of the Purchase Agreements.
(ex) The Purchaser Each Senior Loan Participant shall have received the opinion of from Vedder, Price, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPKammholz, special counsel for the Property Trustee Senior Loan Participants, an opinion satisfactory in substance and the Indenture Trusteeform to such Senior Loan Participant, dated the Closing Date, addressed as to such matters incident to the Purchaser, in substantially the form set out in Annex D heretotransactions contemplated hereby as such Senior Loan Participant may reasonably request.
(gxi) The Purchaser Security Agent shall have received for account of the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Senior Loan Participants the Delaware Trustee, dated the Closing Date, addressed up-front fee specified in Section 3(b). The Security Agent shall disburse to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E heretoeach Senior Loan Participant such up-front fee on such Loan Participant's Maximum Commitment as separately agreed.
(hxii) The Company Rights Offering shall have furnished closed.
(b) Conditions Precedent to the Purchaser Loan Participants' Participation in --------------------------------------------------------------- each Advance. It is agreed that the respective obligations of each Loan ------------ Participant to lend its Commitment to the Borrower in respect of each Advance (including Advances made by Borrower or a certificate third-party financier prior to the applicable Borrowing Date) is subject to the satisfaction prior to or on the Borrowing Date for such Advance of the Companyfollowing conditions precedent:
(i) The Security Agent shall have received due notice with respect to the Borrowing Date for such Advance pursuant to Section 2 hereof (or shall have waived such notice either in writing or as provided in Section 2).
(ii) No change shall have occurred after the date of the execution and delivery of this Agreement in applicable law or regulations thereunder or interpretations thereof by appropriate regulatory authorities which, signed in the reasonable opinion of such Loan Participant would make it a violation of law or regulations for such Loan Participant to make its Commitment for such Advance available to acquire its Loan Certificate(s) or to realize the benefits of the security afforded by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust Mortgage.
(iii) Each other Loan Participant shall have furnished to made available the Purchaser a certificate amount of its Commitment for such Advance in accordance with Section 2(c) hereof (unless Borrower (in the Trust, signed case of Junior Loan Participant or any Senior Loan Participant) or the Junior Loan Participant (as an additional Drawing made by an Administrative Trustee of the Trust, in each case dated the Closing Date, andJunior Loan Participant hereunder, in the case of any Senior Loan Participant) shall have made available the Company, as to (iamount of such unfunded Commitment) and (ii) below and, the Borrower shall have paid to the Manufacturer its Cash Contribution in the case respect of the Trust, as to (i) belowapplicable Aircraft.
(iiv) All appropriate action required to have been taken by any governmental or political agency, subdivision or instrumentality of the United States, on or prior to the Delivery Date for such Aircraft in connection with the transaction contemplated by this Agreement shall have been taken, and all orders, permits, waivers, authorizations, exemptions and approvals of such entities required to be in effect on such Borrowing Date in connection with the transaction contemplated by this Agreement shall have been issued, and all such orders, permits, waivers, authorizations, exemptions and approvals shall be in full force and effect on such Borrowing Date.
(v) On such Borrowing Date, (A) the representations and warranties of the Borrower contained in Section 7 of this Purchase Agreement are shall be true and correct accurate as though made on and as of such date except to the Closing Date extent that such representations and warranties relate solely to an earlier date (in which case such representations and warranties shall be true and accurate on and as of such earlier date), (B) no event shall have occurred and be continuing which constitutes (or would, with the same effect as if made on passage of time or the Closing Dategiving of notice or both, constitute) an Event of Default, and the Company and the Trust, as applicable, have 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; and
(iiC) since October December 31, 2004 (as defined below), 1999 there has shall have been no material and adverse change in the condition (financial or other), earnings, business or assets operational condition of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Borrower.
(ivi) Subsequent No action or proceeding shall have been instituted nor shall governmental action be threatened before any court or governmental agency, nor shall any order, judgment or decree have been issued or proposed to be issued by any court or governmental agency at the execution time of such Borrowing Date to set aside, restrain, enjoin or prevent the completion and consummation of this Purchase Agreement, there shall not have been any change, Agreement or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiestransaction contemplated hereby.
(jvii) Prior to the Closing Date, the Company and the Trust The Security Agent shall have furnished to received for the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any account of the conditions Senior Loan Participants the commitment fees specified in this Section 3 3(b) and due and payable on or prior to such Borrowing Date. The Security Agent shall not have been fulfilled when and distribute to each Senior Loan Participant such commitment fee as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityseparately agreed.
Appears in 1 contract
Conditions. (a) The obligations of each party to consummate the parties under this Stock Purchase Agreement and to effectuate the Closing are subject to the satisfaction or waiver of the following conditionsconditions at the time of the Closing:
(ai) The representations and warranties contained herein no judgment, order, injunction or decree (“Judgment”) issued by any United States federal, state, local or other government, or any United States court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality (a “Governmental Entity”) of competent jurisdiction or statute, law, rule or regulation (“Law”) or other legal prohibition (collectively, “Legal Restraints”) prohibiting the consummation of the Stock Purchase shall be accurate in effect;
(ii) this Agreement shall not have been terminated in accordance with its terms; and
(iii) the waiting period (and any extension thereof) under the HSR Act (as defined in Section 2.02(b)) in respect of the date of delivery of the Preferred SecuritiesStock Purchase shall have lapsed or been terminated.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for Theobligations of the Sellers (Buyer to consummate the “Company Counsel”), shall have delivered an opinion, dated Stock Purchase and to effectuate the Closing Date, addressed are subject to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion satisfaction or waiver of the Company’s General Counsel in form and substance satisfactory to following conditions at the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees time of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.Closing:
(i) the representations and warranties of each Seller set forth in this Purchase Agreement are Article II shall be true and correct as of the date hereof and as of the Closing, except to the extent any such representation and warranty expressly relates to a specified date (in which case on and as of the Closing Date with the same effect as if made on the Closing Datesuch specified date), and (other than the Company representations and warranties set forth in Section 2.03, which shall be true and correct in all respects at such time and at the TrustClosing) except as would not, as applicableindividually or in the aggregate, prevent, materially delay or materially impede the Closing;
(ii) each Seller shall have complied with performed in all the agreements and satisfied material respects all the conditions on its part obligations to be performed or satisfied at or prior by it as of such time under this Agreement;
(iii) the Buyer shall have received a certificate from each of the Sellers, signed on behalf of each of the Sellers by their respective authorized signatory, to the Closing Dateeffect that the conditions set forth in Section 1.03(b)(i) and Section 1.03(b)(ii) have been satisfied; and
(iiiv) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets Buyer shall have received executed copies of IRS Form W-9 certifying that each Seller is exempt from U.S. federal backup withholding tax and the affidavit of each Seller that such Seller is not a “foreign person” within the meaning of Section 1445 of the Company United States Internal Revenue Code of 1986, as amended, in substantially the form of Exhibit B.
(c) The obligations of each Seller to consummate the Stock Purchase and its subsidiaries taken as a whole, whether to effectuate the Closing are subject to the satisfaction or not arising from transactions occurring in waiver of the ordinary course following conditions at the time of business (a “Material Adverse Change”).the Closing
(i) Subsequent the representations and warranties of the Buyer set forth in Article III shall be true and correct as of the date hereof and as of the Closing, except to the execution of this Purchase Agreement, there shall not have been extent any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty expressly relates to a specified date (in which case on and as of the Trust, the Guarantor and/or the Company, as the case may besuch specified date), and not except as would not, individually or in the aggregate, prevent, materially delay or materially impede the Closing;
(ii) the Buyer shall have performed in all material respects all obligations to be performed by it as of such trustee or officer time under this Agreement;
(iii) the Sellers shall have received a certificate from the Buyer, executed by its authorized signatory, to the effect that the conditions set forth in any individual capacitySection 1.03(c)(i) and Section 1.03(c)(ii) have been satisfied.
Appears in 1 contract
Conditions. The obligations consummation of the parties under transactions set forth in Sections 3 through 5 of this Purchase Agreement are shall be subject to the satisfaction of the following conditionsconditions precedent:
(a) The representations Administrative Agent (or its counsel) shall have received from the Borrower and warranties contained herein shall be accurate as the Required Restatement Lenders either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the date Administrative Agent (which may include telecopy transmission of delivery a signed signature page of the Preferred Securitiesthis Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved]The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇ Day, counsel for the Borrower, substantially in the form of Exhibit B-1, (ii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Chtd.
, Nevada local counsel for the Borrower, substantially in the form of Exhibit B-2 and (ciii) Egerton, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Tennessee local counsel for the Sellers (the “Company Counsel”)Borrower, shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts substantially in the law form of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing DateExhibit B-3, and, in the case of each such opinion required by this paragraph, covering such other matters relating to the CompanyLoan Parties, the Loan Documents or the Restatement Transactions as the Required Restatement Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Restatement Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Restated Credit Agreement.
(e) The Administrative Agent shall have received all fees and other amounts due and payable in connection with this Agreement and the Original Credit Agreement on or prior to the Restatement Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall be satisfied after giving effect to the Restatement Transactions, and in connection therewith the Administrative Agent shall have received (i) a completed Perfection Certificate with respect to the Loan Parties dated the Restatement Effective Date and signed by an executive officer or Financial Officer of the Borrower, together with all attachments contemplated thereby and (ii) below andthe results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties (including the Subsidiaries party to the Reaffirmation Agreement) in the jurisdictions contemplated by the Perfection Certificate and the copies of the financing statements (or similar documents) disclosed by such research and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by the Collateral Agreement.
(g) The Administrative Agent shall have received evidence that the insurance required by Section 5.07 of the Restated Credit Agreement and the Security Documents is in effect.
(h) The terms and conditions of the Debt Tender Offer shall be reasonably satisfactory in all material respects to the Administrative Agent. On the Restatement Effective Date, the Borrower shall purchase not less than a majority of the outstanding principal amount of the 2008 Subordinated Notes in accordance with the Debt Tender Offer Materials, without giving effect to any amendment or waiver thereof not approved by the Administrative Agent. The Supplemental Indenture to the 2008 Subordinated Notes Indenture contemplated by the Debt Tender Offer, in the case form previously approved by the Administrative Agent, shall have been executed and delivered and be in full force and effect. The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the TrustBorrower, as to stating the aggregate principal amount of 2008 Subordinated Notes outstanding after the purchase of 2008 Subordinated Notes tendered (iand not withdrawn) belowin the Debt Tender Offer.
(i) The Administrative Agent shall be satisfied that the representations Borrower has received final senior secured credit ratings from each of Moody's and warranties in this Purchase Agreement are true and correct on and as of Standard & Poor's, giving pro forma effect to the Closing Date with the same effect as if made on the Closing Date, Restatement Transactions and the Company Nashville Acquisition, which ratings shall be at least Ba3 and the TrustB+, as applicablerespectively, have complied from such agencies, with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change stable outlook in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitieseach case.
(j) Prior to A Reaffirmation Agreement substantially in the Closing form of Exhibit C hereto shall have been executed and delivered by each party thereto. The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the Company foregoing, the consummation of the transactions set forth in Sections 3 through 5 of this Agreement and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any obligations of the conditions specified in this Section 3 Tranche C Lenders to make Tranche C Term Loans hereunder shall not have been fulfilled when and as provided in this Purchase Agreement, or if any become effective unless each of the opinionsforegoing conditions is satisfied (or waived pursuant to Section 7 below) at or prior to 5:00 p.m., certificates and documents mentioned above New York City time, on May 7, 2003 (and, in the event such conditions are not so satisfied or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Companywaived, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby Tranche C Commitments shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by terminate at such trustee or officer in any individual capacitytime).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Cumulus Media Inc)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the satisfaction of the following conditionsconditions precedent:
(a) Lender shall have received (i) this Amendment, duly executed by the Borrower and Lender, (ii) a certificate of the Secretary of the Borrower acknowledging (A) that the Borrower's Board of Directors has adopted, approved, consented to and ratified resolutions which authorize the execution, delivery and performance by the Borrower of this Amendment, and (B) the names of the officers of the Borrower authorized to sign this Amendment together with specimen signatures of such officers, (iii) the Intercreditor Agreement, in form and substance satisfactory to Lender, duly executed by Borrower and Upfield; (iv) the Subordination Agreement in form and substance satisfactory to Lender, duly executed by Lender, Upfield and holders of the Subordinated Note Documents and acknowledged and agreed to by Borrower, (v) the Subordinated Note Documents, in form and substance satisfactory to Lender, duly executed by Borrower and the holders of the Subordinated Note Documents, (vi) the Upfield Secured Term Note and the Security Agreement and other documents delivered in connection therewith, in form and substance satisfactory to Lender, duly executed by Borrower and Upfield, as applicable and (vii) such additional documents, instruments and information as the Agents or any Lender may reasonably request;
(b) Lender shall have received evidence of the consummation of the Proposed Transaction on terms and conditions satisfactory to Lender and all conditions thereto shall have been satisfied or waived with Lender's consent;
(c) Lender shall have received directly and in immediately available funds a portion of the proceeds of the Upfield Secured Term Note in an amount not less than $457,000, for application to the outstanding balance of the Advances;
(d) The representations and warranties contained herein and in the Loan Agreement, as amended hereby, and the other Credit Documents shall be accurate true and correct in all material respects as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇hereof, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Datedate hereof;
(e) After giving effect to this Amendment, no Default or Event of Default shall have occurred and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Datecontinuing; and
(iif) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries All corporate proceedings taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby by this Amendment and thereby all documents, instruments and other legal matters incident thereto shall be deemed satisfactory to be a representation the Lender and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityits legal counsel.
Appears in 1 contract
Conditions. The obligations effectiveness of this Agreement is conditioned upon the occurrence or the execution and delivery, prior to or concurrently herewith, of each of the parties under this Purchase Agreement are subject following:
3.1 A prepayment to CIT in an amount equal to One Million and No/Dollars ($1,000,000) by TMR Drilling and any other borrowers party to the following conditions:
(a) The representations and warranties contained herein shall be accurate CIT Credit Agreement on the principal amount outstanding under the CIT Credit Agreement as of the date of delivery of hereof, which prepayment shall not be subject to any breakage costs, penalty fees, or similar charges under the Preferred Securities.CIT Credit Agreement or otherwise;
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed 3.2 A Second Amendment to the Purchaser and JPMorgan Chase Bank, National AssociationEquipment Lease, in form and substance satisfactory to mutually agreed by the Purchaser; Parties, duly executed by each of TMR Drilling and Orion;
3.3 A Security Agreement, substantially in the form attached hereto as Exhibit D (ii) the Company shall have furnished to the Purchaser the opinion “Security Agreement”), duly executed by each of the Company’s General Counsel TMR Drilling as “debtor” and Orion as “secured party”;
3.4 A subordination and intercreditor agreement, in form and substance satisfactory mutually agreed by the Parties and CIT (the “Intercreditor Agreement”), duly executed by each of Orion and CIT;
3.5 The CIT Forbearance Agreement, duly executed by each of TMR Drilling, TMRX, Meridian, and CIT, in which CIT agrees to forbear from exercising any and all of its rights and remedies under the PurchaserCIT Credit Agreement with respect to certain defaults and events of default thereunder for a period of ninety (90) days from the date thereof; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees and
3.6 Copies of the Company, resolutions of the Guarantor boards of directors (or equivalent governing body) of each of the Parties authorizing the execution and delivery thereby of this Agreement and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Companyagreements contemplated hereby, and the Trust shall have furnished to the Purchaser a certificate performance of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty thereby, certified by the Secretary or Assistant Secretary of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityParty.
Appears in 1 contract
Sources: Forbearance and Amendment Agreement (Meridian Resource Corp)
Conditions. The obligations This Amendment shall become effective as of the parties under this Purchase Agreement are subject to first date (the “Fourth Amendment Date”) when each of the following conditionsconditions shall have been satisfied:
(a) The representations the Administrative Agent (or its counsel) shall have received from each party hereto (including the Required Lenders and warranties contained herein shall be accurate each Term A Lender and Revolving Lender continuing as such after the Amendment) either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the date Administrative Agent (which may include telecopy, portable document format (.pdf) or email transmission of delivery a signed signature page of the Preferred Securities.this Amendment) that such party has signed a counterpart of this Amendment;
(b) [Reserved].no Default or Event of Default shall have occurred and be continuing or shall result from any extension of credit requested to be made on the Fourth Amendment Date;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), Administrative Agent shall have delivered an opinionreceived a certificate, dated the Closing Date, addressed to the Purchaser Fourth Amendment Date and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion signed by a Responsible Officer of the Company’s General Counsel Parent Borrower, confirming compliance with the conditions set forth in form and substance satisfactory to the Purchaser; and clause (iiib) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice this Section 4.1 and that they are not admitted to practice in any other jurisdiction and are not experts in the law each of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties made by any Loan Party contained in this Purchase Agreement are Section 3.1 above shall be true and correct on and as of the Closing Fourth Amendment Date after giving effect to the Amendment and to any extension of credit requested to be made on the Fourth Amendment Date with the same effect as if though such representations and warranties had been made on and as of such date;
(d) the Closing Administrative Agent shall have received, for the benefit of each Term B Lender that is a party hereto on the Fourth Amendment Date, an amendment fee in an amount equal to 0.05% of the aggregate principal amount of such Lender’s outstanding Term B Loans on the Fourth Amendment Date;
(e) the Administrative Agent shall have received, for the benefit of each Revolving Lender and Term A Lender that is a party hereto on the Fourth Amendment Date, the fees separately agreed in writing between the Parent Borrower and the Company Administrative Agent;
(f) to the extent invoiced at least one (1) Business Day prior to the Fourth Amendment Date, the Administrative Agent shall have received all fees and the Trust, as applicable, have complied with all the agreements other amounts due and satisfied all the conditions payable to it or its Affiliates on its part to be performed or satisfied at or prior to the Closing Fourth Amendment Date; and, including, to the extent invoiced, reimbursement or payment of all of such Persons’ reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(iig) since October 31, 2004 the Administrative Agent shall have received a written opinion or opinions (addressed to the Administrative Agent and the Lenders and dated the Fourth Amendment Date) of counsel for the Loan Parties covering such matters relating to the Loan Parties and the Loan Documents as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken Fourth Amendment Date as a whole, whether or not arising from transactions occurring in the ordinary course are customary for financings of business (a “Material Adverse Change”).this type. The Parent Borrower hereby requests such counsel to deliver such opinions;
(ih) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust Administrative Agent shall have furnished to the Purchaser received such documents and its counsel such further information, certificates and documents as the Purchaser Administrative Agent or its counsel may reasonably request. If any request relating to the organization, existence and good standing of each Loan Party, the authorization of the conditions specified Transactions to be consummated in connection with the execution and delivery hereof and any other legal matters relating to the Loan Parties, the Loan Documents or such Transactions as are customary for financings of this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreementtype, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory all in form and substance reasonably satisfactory to the Purchaser or Administrative Agent and its counsel;
(i) the Administrative Agent shall have received, this Purchase Agreement at least 3 days prior to the Fourth Amendment Date, all documentation and all other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Purchaser’s obligations hereunder may be canceled at PATRIOT Act, with respect to the Closing Loan Parties as of the Fourth Amendment Date that has been reasonably requested by the Purchaser. Notice of such cancellation shall be given Administrative Agent at least 10 days prior to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.Fourth Amendment Date;
Appears in 1 contract
Conditions. The obligations consummation of the parties under transactions set forth in Section 2 of this Purchase Restatement Agreement are shall be subject to the satisfaction (or waiver by the Administrative Agent and the Consenting Lenders) of the following conditionsconditions precedent:
(a) The representations Administrative Agent (or its counsel) shall have received from each Borrower (as defined in the Existing Revolving Credit Agreement and warranties contained herein the Restated Revolving Credit Agreement) and each Consenting Lender (which Consenting Lenders shall be accurate as constitute Existing Required Lenders) either (i) a counterpart of this Restatement Agreement signed on behalf of such party or (ii) written evidence satisfactory to the date Administrative Agent (which may include facsimile or other electronic transmission of delivery a signed signature page of the Preferred Securitiesthis Restatement Agreement) that such party has signed a counterpart of this Restatement Agreement.
(b) [Reserved]The Administrative Agent (or its counsel) shall have received from the Company and each Subsidiary Loan Party that is a Domestic Subsidiary either (i) a counterpart of the Restated US Collateral Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of the Restated US Collateral Agreement) that such party has signed a counterpart of the Restated US Collateral Agreement.
(c) The Collateral and Guarantee Requirement shall have been satisfied with respect to clauses (b) and (h) of the definition thereof.
(d) The Administrative Agent shall have received a completed Perfection Certificate, in the form of Exhibit II to the Restated US Collateral Agreement, dated the Restatement Effective Date and signed by an authorized officer of the Company and each Subsidiary Loan Party that is a Domestic Subsidiary.
(e) The Administrative Agent shall have received a written opinion dated the Restatement Effective Date of (i) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel for the Loan Parties, substantially in the form of Exhibit C hereto, (ii) ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇, Nova Scotia counsel for the Loan Parties, substantially in the form of Exhibit D hereto, (iii) Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP, Delaware counsel for the Loan Parties, substantially in the form of Exhibit E hereto, (iv) Holland & ▇▇▇▇ LLP, Nevada counsel for the Loan Parties, substantially in the form of Exhibit F hereto, (v) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ London LLP, English counsel for Victoria’s Secret UK Limited, substantially in the form of Exhibit G hereto and (vi) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Hong Kong counsel for Mast Industries (Far East) Limited and LB Full Assortment HK Limited, substantially in the Sellers (the “Company Counsel”)form of Exhibit H hereto, shall have delivered an opinion, dated the Closing Date, addressed and in each case covering such other matters relating to the Purchaser Loan Parties, this Restatement Agreement, the Restated Revolving Credit Agreement, the Restated US Collateral Agreement and JPMorgan Chase Bank, National Association, the other Loan Documents in form and substance satisfactory to effect on the Purchaser; (ii) date hereof as the Company Administrative Agent shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax reasonably request. The Borrowers hereby request such counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their deliver such opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser Administrative Agent shall have received such documents and certificates as the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special Administrative Agent or its counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed may reasonably request relating to the Purchaserorganization, existence and good standing of the Loan Parties, the authorization by the Loan Parties of the transactions contemplated hereby and any other legal matters relating to the Loan Parties or the transactions contemplated hereby, all in substantially form and substance reasonably satisfactory to the form set out in Annex D heretoAdministrative Agent and its counsel.
(g) The Purchaser Administrative Agent shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trusteea Borrowing Base Certificate, dated the Closing DateRestatement Effective Date and signed and certified as accurate and complete by the President, addressed to a Vice President, a Director or a Financial Officer of the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E heretoCompany.
(h) The Company Administrative Agent shall have furnished to received a certificate, dated the Purchaser Restatement Effective Date and signed by the President, a certificate Vice President, a Director or a Financial Officer of the Company, signed by confirming the Chief Executive Officer, President or a Vice President, representations and Chief Financial Officer, Treasurer or Assistant Treasurer warranties set forth in Section 3 of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belowthis Restatement Agreement.
(i) the representations The Administrative Agent shall have received (i) all fees and warranties in this Purchase Agreement are true other amounts due and correct payable on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Restatement Effective Date; and
, including, to the extent invoiced at least one Business Day prior to the Restatement Effective Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers under any Loan Document and (ii) since October 31all accrued and unpaid interest, 2004 (as defined below)commitment fees, there has been no material adverse change in participation fees and fronting fees under the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”)Existing Revolving Credit Agreement.
(i) Subsequent No later than one Business Day prior to the execution of this Purchase AgreementRestatement Effective Date, there the Administrative Agent shall not have been any change, received all documentation and other information reasonably requested by it or any development involving Lender at least two Business Days prior to the Restatement Effective Date to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (ii) to the extent a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken Borrower qualifies as a whole whether or not occurring “legal entity” under the Beneficial Ownership Regulation, no later than one Business Day prior to the Restatement Effective Date, any Lender that has requested at least two Business Days prior to the Restatement Effective Date a Beneficial Ownership Certification in relation to the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred SecuritiesBorrowers shall have received such Beneficial Ownership Certification.
(jk) Prior The Company shall, or shall cause the applicable Existing Borrowing Subsidiaries to, repay all Loans made to any Existing Borrowing Subsidiaries under the Closing Existing Revolving Credit Agreement that will, effective as of the Restatement Effective Date, cease to be Borrowers under the Restated Revolving Credit Agreement.
(l) If immediately after the effectiveness of the Restated Revolving Credit Agreement, the Aggregate Credit Exposure would exceed the Maximum Borrowing Amount, the Company shall, on the Restatement Effective Date, prepay any such excess in accordance with Section 2.10(a) of the Restated Revolving Credit Agreement.
(m) If immediately after the effectiveness of the Restated Revolving Credit Agreement, the Consolidated Cash Balance would exceed $350,000,000, the Company shall, on the Restatement Effective Date, prepay any such excess in accordance with Section 2.10(b) of the Restated Revolving Credit Agreement. The Administrative Agent shall notify the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any Lenders of the conditions specified in this Section 3 shall not have been fulfilled when Restatement Effective Date, and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation notice shall be given to the Company, the Guarantor conclusive and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitybinding.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (L Brands, Inc.)
Conditions. The obligations This Agreement shall become effective as of the parties under this Purchase Agreement are subject to first date (the “Second Amendment Effective Date”) when each of the following conditionsconditions shall have been satisfied:
(a) The representations the Administrative Agent (or its counsel) shall have received (x) from each Loan Party, the Majority Lenders for the Term B-1 Facility (determined before giving effect to the replacement of any Non-Consenting Lenders) and warranties contained herein shall be accurate as each Lender holding Term B-1 Loans (after giving effect to the replacement of any Non-Consenting Lenders) (i) a consent to this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the date Administrative Agent (which may include facsimile or electronic transmission of delivery a signed signature page of this Agreement) that such party has signed a consent to this Agreement and (y) from the Preferred Securities.Administrative Agent, an executed counterpart to this Agreement;
(b) [Reserved].the representations and warranties set forth in Section 4 above shall be true and correct;
(c) any fees and reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for ) owing by the Sellers (Initial Borrower to the “Company Counsel”), Administrative Agent and the Second Amendment Arrangers and invoiced prior to the date hereof shall have delivered an opinion, dated the Closing Date, addressed been paid in full (subject to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters any agreed-upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice limits contained in any other jurisdiction and are not experts letter agreement with the Administrative Agent or its affiliates or such Second Amendment Arrangers or their respective affiliates entered into in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991connection with this Agreement).; and
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(ei) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate all Obligations of the Company, signed by Initial Borrower owing to any Non-Consenting Lender being replaced pursuant to Section 3 shall be paid in full to such Non-Consenting Lender concurrently with the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, assignment described in each case dated the Closing Date, and, in the case of the Company, as to (iSection 3) and (ii) below and, in the case Replacement Lender shall pay to each such Non-Consenting Lender an amount equal to the principal amount of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not Term B-1 Loans held by such trustee or officer in any individual capacityNon-Consenting Lender plus accrued and unpaid interest thereon.
Appears in 1 contract
Conditions. The obligations obligation of the parties under this Purchase Agreement are Lenders to make the Term Loans is subject to the satisfaction of the following conditions:
(a) The all representations and warranties contained herein of any of the Credit Parties set forth in this Agreement and in any other Loan Document shall be accurate true and correct in all material respects with the same effect as though made on and as of such date, except for (i) those representations and warranties which relate only to the Closing Date and (ii) those changes in such representations and warranties otherwise permitted by the terms of this Agreement;
(b) there shall have occurred no Material Adverse Effect, after giving effect to the Term Loans;
(c) no Default or Event of Default shall have occurred and be continuing;
(d) if requested by the Agent, it shall have received a certificate executed by a Responsible Officer of the Borrower as to the compliance with subparagraphs (a) through (c) above;
(e) the making of the Term Loans shall not be prohibited by, or subject the Agent or any Lender to, any penalty or onerous condition under any Legal Requirement; and
(f) the Borrower shall have paid all legal fees and other expenses of the type described in Section 10.9 hereof for which invoices have been presented through the date of the Term Loans;
(g) the Agent and the Lenders shall have received the following which shall be duly executed and in Proper Form:
(1) the Loan Documents executed by the applicable Credit Parties;
(2) a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of the Borrower dated as of the date of hereof, authorizing (i) the Borrower’s entering into the transactions contemplated hereby and (ii) the delivery by the Borrower of the Preferred Securities.Loan Documents to be executed and delivered by the Borrower;
(b3) [Reserved].a certificate of corporate resolutions and incumbency executed by the Secretary or an Assistant Secretary of the Parent and each of the Guarantors dated as of the date hereof, authorizing the Parent and each of the Guarantors to (i) enter into the transactions contemplated hereby and (ii) deliver the Loan Documents to be executed and delivered by the Parent and each of the Guarantors;
(c4) certified copies of the Organizational Documents of the Borrower, each of the Borrower’s Subsidiaries, and the Parent;
(5) certificates from the Secretary of State or other appropriate public official of the State of Delaware as to the continued existence and good standing of the Borrower in the State of Delaware;
(6) certificates from the Secretary of State or other appropriate public official as to the continued existence and good standing of the Parent and each of the Guarantors in its applicable State of formation;
(7) certificates from the appropriate public officials of the States of Texas, California, Colorado, Florida, Idaho, Iowa, Kansas, Nebraska, Oklahoma, Tennessee, Utah and Wisconsin for the Borrower as to the good standing and qualification as a foreign corporation, to the extent it is necessary to be qualified to do business as a foreign corporation in these jurisdictions;
(8) [intentionally omitted];
(9) copies of the following financial information: (i) audited consolidated financial statements of the Parent and its Subsidiaries for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available, (ii) unaudited interim consolidated financial statements of the Parent and its Subsidiaries for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph and (iii) the most recent projected income statement, balance sheet and cash flows for each of the Parent’s fiscal years through June 30, 2015 (setting forth such projections on both an annual basis and on a monthly basis for the fiscal year ending June 30, 2011 and on an annual basis only for the 2012 fiscal year);
(10) the Intercreditor Agreement;
(11) a payoff letter from ▇▇▇▇▇▇▇ Fargo Bank, National Association, indicating the amount of the obligations of the Credit Parties to ▇▇▇▇▇ Fargo Bank, National Association and certain other lenders under the Term Loan Agreement dated as of August 10, 2007, as previously amended, and an acknowledgment by ▇▇▇▇▇ Fargo Bank, National Association (on behalf of itself and such lenders) that upon receipt of such funds neither ▇▇▇▇▇ Fargo Bank, National Association nor any such lender will have any rights or interests under the Security Documents or that certain Intercreditor and Collateral Agency Agreement, dated as of August 10, 2007, by and among the Credit Parties, the Revolving Credit Agent, the Collateral Agent and ▇▇▇▇▇ Fargo Bank, National Association , as previously amended;
(12) evidence that all legal (including tax implications) and regulatory matters in connection with the Term Loans are satisfactory to the Agent and the Lenders;
(13) a legal opinion from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Procter LLP, the independent counsel for the Sellers (the “Company Counsel”), shall have delivered an opinionCredit Parties, dated as of the Closing Date, addressed to the Purchaser Agent and JPMorgan Chase Bank, National Association, acceptable in form all respects to the Agent and substance the Lenders in their sole reasonable discretion;
(14) certificates of insurance satisfactory to the Purchaser; Collateral Agent in all respects evidencing the existence of all insurance required to be maintained by the Borrower and its Subsidiaries pursuant to the terms of this Agreement and the Security Documents;
(ii15) copies of all material employment agreements, management fee agreements and tax sharing agreements with respect to any of the Company Credit Parties which the Agent shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.requested;
(h) The Company shall have furnished payment by the Borrower to the Purchaser a certificate of Lenders, the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, Agent and the Trust shall Agent’s applicable Affiliates of all fees required to be paid under the Loan Documents and all expenses required to be paid under the Loan Documents for which invoices have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, been presented; and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) receipt by the representations Agent and warranties in this Purchase Agreement are true the Lenders of all other Loan Documents and correct on and as of the Closing Date any other instruments or documents consistent with the same effect as if made on the Closing Date, and the Company and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution terms of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given relating to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case Agent may bereasonably request, and not executed by such trustee the Credit Parties or officer in any individual capacityother Person required by the Agent.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Animal Health International, Inc.)
Conditions. The obligations consummation of the parties under transactions set forth in Sections 3 through 9 of this Purchase Effectiveness Agreement are shall be subject to the satisfaction of the following conditionsconditions precedent:
(a) The representations Administrative Agent shall have received, on behalf of itself, the Lenders and warranties contained herein shall be accurate as the Issuing Bank, favorable written opinions of the date of delivery of the Preferred Securities.
(bi) [Reserved].
(c) ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Senior Vice President and General Counsel of the Borrower, substantially to the effect set forth in Exhibit B-1, (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for Holdings and the Borrower, substantially to the effect set forth in Exhibit B-2, (iii) Fiddler, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP▇, Puerto Rican counsel for Holdings and the Sellers (the “Company Counsel”)Borrower, shall have delivered an opinion, dated the Closing Date, addressed substantially to the Purchaser and JPMorgan Chase Bank, National Association, effect set forth in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; Exhibit B-3 and (iiiiv) Irvine Law GroupDow, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.PLLC, special Delaware counsel for the Delaware TrusteeBorrower, substantially to the effect set forth in Exhibit B-4, in each case dated the Closing Effectiveness Date, addressed to the PurchaserAdministrative Agent, JPMorgan Chase the Lenders and the Issuing Bank, National Associationand covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrower hereby request such counsel to deliver such opinions.
(b) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State or comparable official of the state or other jurisdiction of its organization, and, except with respect to jurisdictions that do not issue such certificates for persons organized in the manner of such Loan Party, a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State or other official; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Effectiveness Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Effectiveness Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of the Borrower, the Delaware Trustee Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of such Loan Party have not been amended since the date of the last amendment thereto shown on the certified copy thereof furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders, the Issuing Bank or the Administrative Agent may reasonably request.
(c) The Administrative Agent shall have received a certificate, dated the Effectiveness Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Restated Credit Agreement and the Companyconditions set forth in paragraphs (e), in substantially (f), (g) and (m) of this Section 10.
(d) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the form Effectiveness Date under the Existing Credit Agreement or Section 5 or 9(a)(i) of this Effectiveness Agreement.
(e) The Group Equity Contribution shall have been or shall simultaneously with the initial Credit Event be completed; the issued and outstanding Equity Interests of Group shall be owned as set out in Annex C forth on Schedule 10(e) hereto.
(f) The Purchaser Holdings Equity Contribution shall have received been or shall simultaneously with the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D heretoinitial Credit Event be completed.
(g) The Purchaser Asset Purchase shall have been, or simultaneously with the initial Credit Event shall be, consummated in accordance with the Asset Purchase Agreement and applicable law, without any amendment to or waiver of any material terms or conditions of the Asset Purchase Agreement not approved by the Administrative Agent. The Lenders and the Issuing Bank shall have received executed copies of the opinion of ▇▇▇▇▇▇▇▇Asset Purchase Agreement and all certificates, ▇▇▇▇▇▇ & Fingeropinions and other documents delivered in connection therewith, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser all certified by a Financial Officer as complete and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E heretocorrect.
(h) The Company Each of the Security Documents shall have furnished been amended to the Purchaser a certificate extent necessary or advisable in the judgment of the Company, signed Collateral Agent in view of the Transactions. The Collateral Requirement shall be satisfied. Substantially all the economic interest in the Puerto Rican Subsidiary shall be represented by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) belownon-voting capital stock thereof.
(i) The Collateral Agent shall have received the representations and warranties in this Purchase Agreement are true and correct on and as results of a search of the Closing Date Uniform Commercial Code (or equivalent) filings made with respect to the same effect as if Loan Parties in the states (or other jurisdictions) in which each such person is organized, the chief executive office of each such person is located, any offices of such persons in which records have been kept relating to accounts receivable and the other jurisdictions in which Uniform Commercial Code filings (or equivalent filings) are to be made on pursuant to clause (b) of the Closing Datedefinition of "Collateral Requirement", together with copies of the financing statements (or similar documents) disclosed by such search, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior accompanied by evidence satisfactory to the Closing Date; and
Collateral Agent that the Liens indicated in any such financing statement (iior similar document) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets would be permitted under Section 6.02 of the Company and its subsidiaries taken as a whole, whether Restated Credit Agreement or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiesreleased.
(j) Prior The Collateral Agent shall have received a Perfection Certificate dated the Effectiveness Date and duly executed by a Responsible Officer of the Borrower.
(k) The Subsidiary Guarantee Agreement shall have been amended to the Closing Dateextent necessary or advisable in the judgment of the Collateral Agent in view of the Transactions. The Guarantee Requirement shall be satisfied.
(l) All requisite Governmental Authorities (including the FCC and any antitrust or banking authorities in the Applicable Jurisdictions or any other relevant jurisdiction) and third parties shall have approved or consented to the Transactions to the extent required, in each case to the extent failure to obtain such approvals or consents could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and there shall be no action by any Governmental Authority, actual or threatened, that has a reasonable likelihood of materially restraining, preventing or imposing burdensome conditions on the Transactions or the other transactions contemplated hereby (it being understood that FCC approval shall be deemed to have been obtained upon receipt of an initial favorable ruling from the FCC unless the Administrative Agent in good faith believes that it is reasonably uncertain that such initial ruling will become final and nonappealable).
(m) The terms on which the Effectiveness Date Transactions shall have been completed and the capitalization (including Indebtedness) of Group, Holdings and the Borrower after giving effect to the Effectiveness Date Transactions shall be consistent in all material respects with the pro forma financial statements and projections provided to the Lenders prior to the date hereof (including all updates of such projections provided to the Lenders prior to the date hereof), giving effect to the assumptions on which such projections are based.
(n) The Administrative Agent shall have received evidence that the insurance required by Section 5.01 and the Security Documents is in effect. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.08 of the Restated Credit Agreement) at or prior to 5:00 p.m., New York City time, on June 1, 2001 (and, in the event such conditions are not so satisfied or waived, the obligations of the Lenders to complete the transactions provided for herein shall terminate at such time). The Administrative Agent shall notify the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any Lenders of the conditions specified in this Section 3 shall not have been fulfilled when Effectiveness Date, and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation notice shall be given to the Company, the Guarantor conclusive and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacitybinding.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement Lenders to make Loans on the Effective Date are subject subject, at the time of the making of such Loans to satisfaction of the following conditions on or prior to the following conditionsEffective Date:
(a) The representations and warranties contained herein Administrative Agent (or its counsel) shall be accurate as have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the date Administrative Agent (which may include telecopy transmission of delivery a signed signature page of the Preferred Securitiesthis Agreement) that such party has signed a counterpart of this Agreement.
(b) [Reserved]The Administrative Agent shall have received from the Borrower a Closing Certificate in the Form of Exhibit E, dated the Effective Date and signed on behalf of the Borrower by a Financial Officer of the Borrower.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Transaction Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received from Holland & Knight LLP, counsel to the Loan Parties, and ▇▇▇▇▇▇, ▇ ▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for Esq., Senior Vice President, Secretary and Chief Legal Officer of the Sellers (the “Company Counsel”)Borrower, shall have delivered an opinion, dated the Closing Date, opinions addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor Administrative Agent and the Trust Lenders and by government officials (provided, however, that copies of any such certificates or documents are delivered to dated the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts Effective Date substantially in the law form of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified byExhibits F-1 and F-2, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B heretorespectively.
(e) The Purchaser Borrower shall have received issued and sold the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee First Priority Notes and the Company, Second Priority Notes substantially on the terms and conditions described in substantially the form set out in Annex C heretoOffering Memorandum.
(f) The Purchaser At or on the Effective Date, (1) the Existing Notes tendered pursuant to the Offer to Purchase shall have received been accepted by the opinion Borrower in accordance with the terms of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPthe Offer to Purchase, special counsel (2) the supplemental indentures contemplated by the Offer to Purchase shall have been executed and delivered by all parties thereto, and the only condition to their becoming operative shall be the payment for the Property Trustee Existing Notes tendered and the Indenture Trustee, dated the Closing Date, addressed (3) all Existing Notes not accepted for purchase tendered pursuant to the PurchaserOffer to Purchase shall have been irrevocably called for redemption on or prior to January 17, 2006 and an amount sufficient to fund the redemption of the Existing Notes shall, concurrently with the purchase of the Securities by the Initial Purchasers, be deposited with the trustees for such Existing Notes in substantially order to defease or discharge each of the form set out in Annex D heretoExisting Notes Indentures.
(g) The Purchaser Borrower shall have received furnished to the opinion Administrative Agent the Security Agreement, duly executed by each Loan Party and each of ▇▇▇▇▇▇▇▇the other parties thereto, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel together with:
(A) evidence satisfactory to the Administrative Agent that (upon filing in the appropriate filing offices referred to in clause (x) below) the Collateral Agent (for the Delaware Trusteebenefit of the Lenders and the other holders of Permitted First Priority Obligations) has a valid and perfected first priority security interest in the Collateral, dated as the Closing Datecase may be, addressed including (x) such documents duly executed by each Loan Party as the Administrative Agent may request with respect to the Purchaser perfection of the Collateral Agent’s security interests in the Collateral (including financing statements under the UCC and JPMorgan Chase Banktrademark and copyright security agreements), National Association(y) copies of UCC search reports as of a recent date listing all effective financing statements that name any Loan Party as debtor, together with copies of such financing statements (except for those which shall be terminated on the Effective Date and Permitted Liens) and (z) evidence of termination and release of any existing Liens which are not Permitted Liens (including UCC-3 termination statements and releases);
(B) certificates representing all certificated Pledged Collateral (as defined in substantially the form set out Security Agreement) and stock powers or other instruments of transfer for such share certificates executed in Annex E heretoblank; and
(C) Control Agreements with respect to each account listed on Schedule 6 to the Security Agreement.
(h) The Company Borrower shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel Agent such further information, certificates and documents as the Purchaser or its counsel Administrative Agent may reasonably request. If any .
(i) The Borrower shall have provided an Officer’s Certificate to the Administrative Agent to the effect that:
(i) the representations and warranties set forth in Article III hereof and in the Security Documents are true and correct as of the conditions specified in this Section 3 Effective Date;
(ii) at the time of and immediately after giving effect to the Transactions to be consummated on the Effective Date, no Default shall not have been fulfilled when occurred and as provided in this Purchase Agreementbe continuing;
(iii) immediately after giving effect to the Transactions, or if any (a) the fair value of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice assets of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee each of the Trust Borrower and each Subsidiary Guarantor, at a fair valuation, will exceed its debts and probable liabilities, subordinated, contingent or any officer otherwise; (b) the present fair saleable value of the Company property of each of the Borrower and each Subsidiary Guarantor will be greater than the amount that will be required to pay its debts and other probable liabilities, subordinated, contingent or otherwise, as such debts and other probable liabilities become absolute and matured; (c) each of the Borrower and each Subsidiary Guarantor will be able to pay its debts and delivered probable liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) none of the Borrower nor any Subsidiary Guarantor will have unreasonably small capital with which to conduct the Purchaser or the Purchaser’s counsel business in connection with the Operative Documents which it is engaged as such business is now conducted and the transactions contemplated hereby and thereby shall be deemed is proposed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityconducted.
Appears in 1 contract
Conditions. 3.1 Closing Conditions for the Benefit of the Purchaser
3.1.1 The obligations of the parties under Purchaser to complete the transactions contemplated in this Purchase Agreement are shall be subject to the satisfaction of, or compliance with, at or before the relevant Time of Closing, each of the following conditionsconditions precedent (each of which is hereby acknowledged to be inserted for the exclusive benefit of the Purchaser and may be waived by it in writing in whole or in part):
(a) each of the representations and warranties of UEC or CMC made in or pursuant to this Agreement or in any Closing Document delivered pursuant hereto shall be true and correct in all material respects (other than those representations and warranties that are qualified by materiality which shall be true and correct in all respects) as and when made and at and as of the Time of Closing as though such representations and warranties were made at and as of the Time of Closing (except, in any case, that representations and warranties that expressly speak of a specific time need only be true and correct as of such specified date or time);
(b) all obligations, agreements and covenants of UEC to be completed prior to the Time of Closing shall have been performed or completed by it in all material respects, as applicable;
(c) UEC shall have delivered to the Purchaser a certificate from a senior officer, dated as of the Closing Date, certifying that the conditions of Section 3.1.1(a) and Section 3.1.1(b) hereof have been satisfied;
(d) UEC shall have delivered to the Purchaser an officer's certificate of each of UEC and CMC, dated as of the Closing Date, in form and substance reasonably satisfactory to the Purchaser, certifying: (a) its constating documents; (b) the resolutions of their board of directors authorizing the execution and delivery of this Agreement and the Royalty Agreements, as applicable, and the completion of the transactions contemplated hereby and thereby; and (c) incumbency and signatures of the signatories executing this Agreement or any of the Closing Documents, as applicable;
(e) all consents or approvals from, or notifications to, any Person required to create, and grant the Royalties to the Purchaser (including those set forth in the "G" of this Agreement) will have been obtained by UEC and CMC and copies of which will have been provided by UEC to the Purchaser on or before the Time of Closing, in form satisfactory to the Purchaser acting reasonably;
(f) UEC shall have delivered to the Purchaser the written acknowledgement of any third parties with any Lien or other interest in the Properties as required by, and in form satisfactory to, the Purchaser acting reasonably;
(g) the Purchaser shall have received evidence satisfactory to it, acting reasonably, that all necessary or desirable registrations have been filed with appropriate Governmental Bodies to evidence the Royalties against title to the respective Properties;
(h) no Order shall have been issued or made and no legal or regulatory requirement shall remain to be satisfied, in either case which has the effect of making void, unlawful or otherwise prohibiting the creation and sale of the Royalties as contemplated herein;
(i) all Governmental Approvals with respect to approval by any Governmental Body of the creation, grant and sale of the Royalties to the Purchaser, shall have been obtained;
(j) no action or proceeding will be pending or threatened by any Person to enjoin, restrict or prohibit the purchase, creation, grant and sale of the Royalties contemplated hereby;
(k) no change, effect, event, development, occurrence or state of facts or combination thereof that is, or would be, materially adverse to the Royalties, the Properties or the Projects, shall have occurred since the date of this Agreement;
(l) each of the parties to the Royalty Agreements, as applicable, shall have executed and delivered the applicable Royalty Agreements to each counterparty;
(m) UEC shall have delivered to the Purchaser all of the information requested by the Purchaser, acting reasonably, to conduct technical, legal and financial due diligence with respect to the Projects, the Properties and the Royalties, and shall have provided access to the Purchaser to visit and inspect the Properties for purposes of such due diligence;
(n) no material adverse change shall have occurred with respect to any of the Properties or Projects;
(o) the Purchaser shall have obtained from its lenders all requisite consents to, and approvals of, the transactions contemplated in this Agreement; and
(p) UEC shall deliver, or cause to be delivered, to the Purchaser such other documents as the Purchaser may reasonably require pursuant to the transactions contemplated hereunder.
3.1.2 If any condition in Section 3.1.1 hereof shall not have been satisfied at or prior to September 30, 2018, the Purchaser may, without limiting any other right that it may have, at its sole option either:
(a) The representations and warranties contained herein rescind this Agreement by notice to UEC and, in such event, the Purchaser shall be accurate as of the date of delivery of the Preferred Securities.released from all obligations; or
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of waive compliance with any such certificates term, covenant or documents are delivered condition in whole or in part on such terms as may be agreed upon without prejudice to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts of its rights of rescission in the law event of non-performance of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed term, covenant or qualified by, condition in whole or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991)in part.
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Conditions. Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. ---------------------------------------------------------- The respective obligations of each party to effect the parties under this Purchase Agreement are Merger shall be subject to the fulfillment at or prior to the Effective Time of the following conditions:
(a) The representations and warranties contained herein 2,000,000 Common Shares shall be accurate as of have been purchased pursuant to the date of delivery of the Preferred Securities.Offer;
(b) [Reserved].if required by applicable Law, this Agreement and the Merger shall have been approved and adopted by the requisite votes of the respective shareholders of Allied at the Shareholders Meeting called for such purpose;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (waiting period applicable to the “Company Counsel”), consummation of the Merger under the HSR Act shall have delivered an opinionexpired or been terminated and, dated other than the Closing Datefilings provided for in subclauses (a) and (b) of the second sentence of Section 2.3, addressed all Governmental Approvals and other Consents or Filings which the parties have agreed are required to be obtained prior to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser Effective Time shall have been furnished obtained and not rescinded or adversely modified or limited (as set forth in the opinion of Mayerproviso below) or, Brownif merely required to be filed, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser such filings shall have received been made and accepted, and all waiting periods prescribed by applicable Law shall have expired or been terminated in accordance with applicable Law; provided that -------- no such Governmental Approval or other Consent or Filing shall contain any conditions or limitations that compel or seek to compel the opinion Surviving Corporation to dispose of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for or to hold separately all or any material portion of the Delaware Trustee, dated Business or Assets of the Closing Date, addressed parties and their respective Subsidiaries taken as a whole or that impose or seek to impose any material limitation on the Purchaser, JPMorgan Chase Bank, National Association, ability of the Delaware Trustee Surviving Corporation and the CompanyAllied Subsidiaries, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether to conduct its Business or not arising from transactions occurring own its Assets after the Effective Time in substantially the ordinary course of business (a “Material Adverse Change”).same manner as the parties and their respective Subsidiaries presently conduct their Business or own their Assets; and
(id) Subsequent to no Order entered or Law promulgated or enacted by any Governmental Entity shall be in effect which would prevent the execution consummation of this Purchase Agreementthe Merger or any other material transactions completed hereby, there and no Proceeding brought by a Governmental Entity shall not have been any changecommenced and be pending which seeks to restrain, enjoin, prevent, or any development involving a prospective change, in materially delay or affecting restructure the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust Merger or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the other material transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityhereby.
Appears in 1 contract
Sources: Merger Agreement (Allied Group Inc)
Conditions. The obligations effectiveness of the parties under this Purchase Agreement are Amendment is subject to the satisfaction or waiver of the following conditions:conditions precedent (the date of satisfaction of all such conditions precedent shall be referred to herein as the “Second Amendment Effective Date”):
(a) The representations the execution and warranties contained herein shall be accurate as of the date of delivery of this Amendment by the Preferred Securities.
(b) [Reserved].
(c) Loan Parties and L▇▇▇▇▇▇, ▇▇▇▇▇;
(b) Lender shall have received the Second Supplemental Term Loan Promissory Note duly executed by the Borrowers;
(c) L▇▇▇▇▇ & ▇▇▇▇shall have received the Second Amendment to Guaranty and Security Agreement duly executed by the Loan Parties;
(d) L▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinionreceived a certificate of the secretary (or other equivalent officer, partner or manager) of each Borrower, dated as of the Closing Second Amendment Effective Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, which shall certify (i) copies of resolutions in form and substance satisfactory to Lender of the Purchaser; board of directors (or other equivalent governing body, member, manager or partner) of such Borrower authorizing the execution, delivery and performance of this Amendment and each other Loan Document executed by such Borrower in connection herewith, (ii) the Company shall have furnished to the Purchaser the opinion incumbency and signature of the Company’s General Counsel officers of such Borrower authorized to execute this Amendment and each other Loan Document executed by such Borrower in form and substance satisfactory to the Purchaser; and connection herewith, (iii) Irvine Law Groupcopies of the Organizational Documents of such Borrower as in effect on such date, P.C., special tax counsel complete with all amendments thereto (or a certification from such Borrower that the Organizational Documents of such Borrower attached to the Guarantor shall officer certificate of such borrower, dated as of the First Amendment Effective Date and delivered to Lender by such Borrower, are in full force and effect on the date hereof and have delivered an opinion not been amended, modified, terminated or rescinded in form any respect), and substance satisfactory (iv) the good standing (or equivalent status) of such Borrower in its jurisdiction of organization as evidenced by good standing certificate(s) (or the equivalent thereof issued by any applicable jurisdiction) dated not more than thirty (30) days prior to the Purchaser. In rendering their opinionSecond Amendment Effective Date, issued by the Company Counsel may rely as to factual matters upon certificates Secretary of State or other documents furnished by officers, directors and trustees appropriate official of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any each such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser Lender shall have received the a legal opinion of ▇▇▇▇▇▇▇▇, ▇Borrowers’ counsel as L▇▇▇▇▇ & Finger, P.A., special Delaware counsel for shall reasonably request in connection with the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Companytransactions contemplated by this Amendment, in substantially the form set out in Annex C hereto.and substance reasonably satisfactory to Lender;
(f) The Purchaser Lender shall have received the opinion satisfactory results of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLPlien, special counsel for the Property Trustee good standing and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.other searches as Lender may require;
(g) The Purchaser shall have received the opinion no Default or Event of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed Default currently exists or would immediately result after giving effect to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.this Amendment;
(h) The Company Lender shall have furnished received a Notice of Borrowing with respect to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.Second Supplemental Term Loan;
(i) the representations and warranties in this Purchase Agreement are Section 4 hereof being true, correct and complete in all material respects (without duplication of any materiality qualifier in such representations or warranties), except to the extent that any such representation or warranty relates to a specific earlier date, in which case such representation and warranty shall be true and correct on and in all material respects as of the Closing Date with the same effect such earlier date (without duplication of any materiality qualifier in such representations or warranties);
(j) Lender shall have received such other documents or financial statements as if made on the Closing Date, and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing DateLender may reasonably request; and
(iik) since October 31, 2004 the Borrowers shall have paid to Lender all fees and expenses for the Administrative Borrower (as defined below), there has been no material adverse change if provided an invoice at least one Business Day in the condition (financial or other), earnings, business or assets advance of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(idate hereof) Subsequent owing to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel Lender in connection with the Operative Documents this Amendment and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityherein.
Appears in 1 contract
Sources: Credit Agreement (American Shared Hospital Services)
Conditions. Section 3.1. Conditions to Effectiveness of this Agreement and to the initial Extensions of Credit on the Effective Date. The obligations effectiveness of this Agreement and the obligation of each Lender to make any Extension of Credit on the Effective Date or for the Agent or any Lender to take, fulfill or perform any other action hereunder, shall be subject to satisfaction of all of the parties under this Purchase Agreement are subject following conditions in a manner satisfactory to the following conditionsAgent:
(a) This Agreement or counterparts hereof, the Notes and the other Loan Documents shall have been duly executed by the Borrowers and the other Credit Parties party thereto, and delivered to the Agent and Lenders; and Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by this Agreement, including an opinion of counsel to the Credit Parties substantially in the form of Exhibit I and the other documents, instruments, agreements and opinions listed in the Closing Checklist attached hereto as Exhibit K, each in form and substance reasonably satisfactory to the Agent. The representations Agent shall have received and warranties contained herein shall be accurate approved revised Schedules to this Agreement and, if appropriate, the other Credit Documents, dated as of the date of delivery of the Preferred Securities.Effective Date;
(b) [Reserved].The Interim Order shall have been entered or approved by the Bankruptcy Court in form and substance acceptable to the Borrowers, the Agent and the Lenders;
(c) ▇▇▇▇▇▇Agent shall have received (i) evidence satisfactory to it in its sole discretion that the Credit Parties have obtained all required consents and approvals, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLPincluding regulatory and other third party approvals, counsel of all Persons including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the other Loan Documents and the continuing operations of the Credit Parties, and the same shall be in full force and effect or (ii) an Officer’s Certificate in form and substance satisfactory to Agent affirming that no such consents or approvals are required;
(d) Agent shall have received the Fees required to be paid by the Borrowers on the Effective Date in the respective amounts specified in Section 2.7 or in the Commitment Letter and shall have reimbursed the Agent for all fees, costs and expenses of closing presented as of the Sellers Effective Date;
(e) The corporate structure, capital structure, other debt instruments, material contracts of CCS, and governing documents of the “Company Counsel”Credit Parties and their Subsidiaries shall be acceptable to Agent and Lenders in their respective sole discretion;
(f) Agent shall have received evidence satisfactory to it in its sole discretion that Agent (on behalf of the Lenders) holds a perfected, first priority lien in all of the Collateral, subject to no other liens except for Permitted Encumbrances;
(g) As of the Effective Date, there shall have been (i) other than the commencement of the Bankruptcy Cases and the events contemplated by the Forbearance Agreement, since January 30, 2006, no material adverse change in the business, financial or other condition of the Credit Parties taken as a whole, the Collateral which would be subject to the security interest granted to the Agent, or in the projections of the Credit Parties and (ii) no litigation commenced that has not been stayed by the Bankruptcy Court, that has a reasonable likelihood of being determined adversely to any Credit Party and that, if so determined, could reasonably be expected to have a Material Adverse Effect;
(h) [Reserved.]
(i) After giving effect to any Extensions of Credit to be made on the Effective Date, Borrowers shall be in compliance with all financial covenants set forth in this Agreement and Agent shall have received such certificates and information as it may request in order to verify such pro forma compliance with the financial covenants;
(j) After giving effect to any Extensions of Credit to be made on the Effective Date, Borrowers shall have Borrowing Availability (calculated on a pro forma basis with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration of working capital) of at least $2,000,000, in the aggregate;
(k) [Reserved]
(l) [Reserved]
(m) There shall not exist (i) any Default or Event of Default under the Loan Documents or (ii) any default or event of default under any other Indebtedness or agreement of any Credit Party not disclosed on the Disclosure Schedules, which could reasonably be expected to have a Material Adverse Effect;
(n) There shall have been no direct or indirect change in Senior Management of any Credit Party, except as set forth in Section 7.22;
(o) [Reserved.]
(p) The Fixed Charge Coverage Ratio shall not exceed 0.50 to 1.00, determined on a pro forma basis after giving effect to the Loans to be made on the Effective Date;
(q) All Loan Documents shall be in form and substance satisfactory to the Agent and the Lenders;
(r) The Credit Parties shall be in pro forma compliance (based on the 2005 Unaudited Financials) with all financial covenants set forth in Sections 7.15, 7.16, 7.17 and 7.19 as of the Effective Date after giving effect to the Loans to be made on the Effective Date and Agent shall have received evidence in form and substance satisfactory to it in its sole discretion of such pro form compliance;
(s) Holdings and its consolidated Subsidiaries shall have pro forma trailing twelve month EBITDA of at least $16,500,000 (based on the 2005 Unaudited Financials), with any adjustments to such pro forma EBITDA to be satisfactory to Agent in its sole discretion;
(t) The Senior Secured Leverage Ratio shall not exceed 2.00 to 1.00, (based on the 2005 Unaudited Financials) determined on a pro forma basis after giving effect to the Loans to be made on the Effective Date;
(u) The Total Leverage Ratio shall not exceed 13.75 to 1.00, (based on the 2005 Unaudited Financials) determined on a pro forma basis after giving effect to the Loans to be made on the Effective Date;
(v) The Agent shall not have become aware of any information or other matter affecting any Credit Party or the transactions contemplated hereby that is inconsistent in a material and adverse manner with any such information or other matter disclosed to the Agent prior to January 30, 2006;
(w) The Agent shall have delivered an opinionreceived a duly executed Borrowing Base Certificate, dated the Closing Date, addressed not more than 15 days prior to the Purchaser and JPMorgan Chase Bank, National AssociationEffective Date, in form and substance satisfactory to Agent;
(x) Agent shall have received and reviewed (i) the Purchaser; audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of Holdings and its consolidated Subsidiaries and CCS prepared in accordance with GAAP for the Fiscal Year ended December 31, 2004, (ii) the Company shall have furnished to unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of each of Holdings and its consolidated Subsidiaries and CCS prepared in accordance with GAAP for the Purchaser Fiscal Year ended December 31, 2005 (the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; “2005 Unaudited Financials”) and (iii) Irvine Law Group, P.C., special tax counsel any changes to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees forecasts of the Company, financial performance of Holdings and its Subsidiaries through 2008. Agent shall be satisfied with the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, items specified in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to clause (i) (it being understood that Agent is satisfied with the draft consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Holdings for the Fiscal Year ended December 31, 2005 delivered to Agent prior to March 31, 2006, provided, that if the Credit Parties obtain an extension from the Securities and Exchange Commission regarding the filing of audited financial statements, the preceding date may be extended to April 30, 2006. Any changes specified in clause (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance materially worse than the forecasts previously provided to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityAgent.
Appears in 1 contract
Conditions. The obligations of the parties under this Purchase Agreement are Remarketing Agent hereunder will be subject to the following conditions:
(a) The accuracy, when made and on the Rate Reset Date, as applicable, of the representations and warranties contained herein shall be accurate as of the date of delivery of the Preferred Securities.
(b) [Reserved].
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Group, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and performance by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted of its obligations hereunder, and to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord each of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser following additional terms and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.conditions:
(i) the representations Offering Materials at the Rate Reset Date will not contain an 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 not misleading; PROVIDED that this condition to the Remarketing Agent's obligations hereunder will not apply with respect to information contained in or omitted from the Offering Materials in reliance upon and warranties in this Purchase Agreement are true conformity with written information furnished to the Company by the Remarketing Agent specifically for inclusion therein;
(ii) to the extent that any Offering Materials have been provided to the Remarketing Agent pursuant to Section 3, the Remarketing Agent will have received such certificates, opinions of counsel, accountants' letters and correct other support for the information contained in such Offering Materials as the Remarketing Agent or its counsel shall have requested pursuant to Section 3(b) with effect, if requested by the Remarketing Agent, on and as of the Closing Date with the same effect as if made Rate Reset Date;
(iii) on the Closing Date, and the Company and the Trust, as applicable, have 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; and
Rate Reset Date (iia) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there trading generally shall not have been any change, suspended or any development involving a prospective change, in materially limited on or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Companyby, as the case may be, and the New York Stock Exchange, (b) trading of any notes or other securities of or guaranteed by the Company shall not by such trustee have been suspended on any exchange or officer in any individual capacityover-the-counter market, (c) a general moratorium on commercial banking activities in New York shall not have been declared by either federal or New York State authorities or (d) there shall not have occurred any outbreak or escalation of hostilities or any calamity or crisis that, in the judgment of the Remarketing Agent, is material and adverse and which, in the judgment of the Remarketing Agent, makes it impracticable for it to perform any of its obligations enumerated in Section 2;
(iv) subsequent to the day ninety days prior to the Submission Date or, if earlier, the Filing Date, there will not have been any decrease in the rating of any of the Company's debt securities by a "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) (or any applicable successor rule) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(v) no event will have occurred which would permit a Capital Event, '40 Act Event or Tax Event (each as defined in the Indenture) to become effective, except as disclosed in the Offering Materials; and
(vi) any registration statement required to be filed with the Commission pursuant to Section 3(a) will have been so filed and become effective on or prior to the respective dates specified in Section 3(a); the Prospectus will have been filed with the Commission pursuant to Rule 424(b) (or any applicable successor rule) within the applicable time period prescribed for such filing by the Rules and Regulations and prior to the Rate Reset Date; no stop order suspending the effectiveness of the Registration Statement or any part thereof will have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with; and no order suspending the qualification of the Capital Securities (or, if a Distribution Event shall have occurred, the Junior Subordinated Debt Securities) under any applicable state securities or "Blue Sky" laws shall have been issued, and no proceeding for that purpose shall have been initiated or threatened.
Appears in 1 contract
Sources: Remarketing Agreement (National City Capital Trust I)
Conditions. The obligations 3.1 Completion is conditional upon the fulfilment of each of the parties under this Purchase Agreement are subject to the following conditions:Conditions as follows:-
(a) The representations and warranties contained herein Purchaser shall be accurate as have received an opinion from Garretts, the Company's solicitors, in relation to the issued share capital of the date of delivery of Company substantially in the Preferred Securities.form attached hereto as Exhibit 6;
(b) [Reserved].The Purchaser shall have participated in discussions with TI and shall, in the opinion of the Purchaser, be satisfied that each Group Company and TI will have a satisfactory business relationship following the Completion. Furthermore, TI shall confirm in terms which are satisfactory to the Purchaser that the Company may provide the Purchaser with full access from and after the fifteenth day following the date hereof to all TI=s Intellectual Property in the possession of, or under the control of, any Group Company;
(c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for Each of the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in form and substance satisfactory to the Purchaser; (ii) Principal Management Employees of the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel executed and delivered service agreements in form and substance satisfactory to the Purchaser; and (iii) Irvine Law Groupeach case, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts substantially in the law form of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, Exhibit 2 conformed in each case as per the Legal Opinion Accord of the ABA Section of Business Law (1991).employee term sheet and notes attached as Exhibit 3;
(d) The Board of Directors of the Purchaser shall have been furnished adopted a resolution approving the opinion terms of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to this agreement and duly authorising the Purchaser to perform its obligations under this agreement and JPMorgan Chase Bank, National Association, in substantially to take such further actions as are reasonably necessary to consummate the form set out in Annex B hereto.transactions contemplated by this agreement;
(e) The Purchaser shall have received completed all its business, legal, accounting and other due diligence with respect to the opinion Group and shall, in its sole judgment, be satisfied with the results thereof;
(f) No event or events shall have occurred, or be reasonably likely to occur, which, individually or in the aggregate, have, or could have, a Material Adverse Effect;
(g) The Purchaser, the Vendors and each Group Company shall have received, each in a form reasonably satisfactory to the Purchaser, all authorisations, consents, orders and approvals of ▇▇▇▇▇▇▇▇, all governmental or regulatory authorities and all third party consents which the Purchaser deems necessary or desirable for the consummation of the transactions contemplated by this agreement;
(h) ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for Blaxtan shall have delivered transfers in common form relating to all of the Delaware Trustee, dated Shares owned by her in favour of the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee Purchaser (or as it may direct) and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed share certificates relating to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, such Shares; and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) All warrants, options (other than options granted under the representations Digital Projection Share Option Scheme), convertible securities or other rights, agreements, arrangements or commitments of any character relating to the share capital of any Group Company, or obligating any Vendor or any Group Company to issue or sell any shares, or any other interest in any Group Company (except, in each case, pursuant to this agreement) shall have been terminated or otherwise cancelled and warranties shall be of no force or effect immediately prior to Completion.
3.2 The Purchaser may, in this Purchase Agreement are true its sole discretion, by notice in writing to the Vendors and correct on and as the Company waive any of the Closing Date with Conditions in whole or in part.
3.3 Each of the same effect as if made on Principal Management Employees and the Closing DateCompany undertakes to use all reasonable endeavours to procure the fulfilment of the Conditions set out in paragraphs (c), (g), (h) and (i) of clause 3.1 and to consummate the transactions contemplated by this agreement, and the Company Principal Management Employees shall use reasonable endeavours to assist and facilitate the Trust, as applicable, have complied Purchaser in connection with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”clause 3.1(b).
3.4 If all of the Conditions (i) Subsequent to save for those compliance with which has been waived in accordance with the execution terms of this Purchase Agreementagreement) have not been fulfilled on or before September 3, there 1999, this agreement shall not terminate in accordance with clause 3.5 with effect from that date.
3.5 If this agreement terminates in accordance with clause 3.4 then the obligations of the parties shall automatically terminate save that the rights and liabilities of the parties which have been any change, or any development involving a prospective change, in or affecting the condition accrued prior to termination under clauses 4.6 to 4.12 (financial or otherinclusive), earnings9, business or assets 10 and 13 to 20 (inclusive) shall continue to subsist.
3.6 The Principal Management Employees and the Company shall keep the Purchaser advised of any Material Adverse Effect of which they become aware and the progress towards the satisfaction of their obligations under clause 3.3, and the Purchaser shall keep the Vendors and the Company advised of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in progress towards the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any satisfaction of the conditions specified in this Section 3 under clause 3.3.
3.7 The Purchaser shall not have been fulfilled when deliver to the Principal Management Employees and as provided in this Purchase AgreementInvestors within 7 days after the meeting with TI currently scheduled to be held on August 2, or if any 1999 a letter setting forth the Purchaser's view of the opinions, certificates likely business relationship between TI and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form the Company post-Completion and substance to whether the Purchaser or its counsel, this Purchase Agreement and all knows if such view will have an impact on the Purchaser’s obligations hereunder may be canceled at valuation of the Closing Date by Group.
3.8 The Vendors shall procure that the Purchaser. Notice of such cancellation Company shall be given re-registered as a private limited company prior to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityCompletion.
Appears in 1 contract
Sources: Share Purchase Agreement (Imax Corp)
Conditions. The obligations (a) This Amendment shall be effective upon satisfaction of the parties under this Purchase Agreement are subject to the following conditionsconditions precedent:
(ai) This Amendment shall have been executed by each party hereto; and
(ii) The Agent shall have received a certificate from the chief financial officer of the Company certifying that (i) immediately after giving effect to this Amendment, all representations and warranties made hereunder, in the Loan Agreement and in the other Loan Documents shall be true and correct as if made on the date hereof, (ii) the Borrowers 3 Table of Contents have performed and complied with all covenants, agreements and conditions contained herein shall which are required to be accurate as of performed or complied with by the Borrowers on or before the date hereof and (iii) no Default or Event of delivery of the Preferred SecuritiesDefault shall have occurred and be continuing after giving effect to this Amendment.
(b) [Reserved].The following shall be conditions precedent to the execution of this Amendment:
(ci) ▇▇▇▇▇▇The Agent shall have received (i) copies of the articles of incorporation or certificates of formation or other charter documents of each Borrower, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP(ii) copies of the bylaws or other similar agreement and all amendments thereto of each Borrower, counsel for (iii) copies of resolutions of the Sellers Board of Directors or similar managing body of each Borrower approving and adopting this Amendment, the transactions contemplated herein and authorizing execution and delivery thereof, in each case, of each Borrower and certified by a secretary or assistant secretary of the Company to be true and correct and in force and effect as of the date hereof, (iv) a certificate of the Secretary or Assistant Secretary (or equivalent thereof) of each Borrower certifying as to the incumbency of the officers of each Borrower, and (v) an original, duly certified as of a current date by the applicable Secretary of State, of a good standing certificate issued by the Secretary of the state of incorporation or organization of each Borrower;
(ii) The Borrowers shall have paid the fees described in the Fee Letter and all other fees and expenses of the Agent and the Attorney Costs incurred in connection with this Amendment and any of the Loan Documents and the transactions contemplated thereby to the extent invoiced;
(iii) The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Loan Agreement;
(iv) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Borrowers and to make copies thereof, and to conduct a field examination and audit of the Collateral which shall include, without limitation, updated desktop fixed asset appraisals, verification of Inventory, Accounts, and the Borrowing Base, and in each case the results of such examination and audit shall have been satisfactory to the Agent and the Lenders in all respects;
(v) The Agent shall have received a fair market value appraisal of the Columbia Property (provided that it shall not be a condition precedent to the execution of this Amendment that the Agent receive a fair market value appraisal of the other Land and Buildings listed on Schedule A-2), and the results of such appraisal shall have been satisfactory to the Agent and the Lenders in all respects;
(vi) All proceedings taken in connection with the execution of this Amendment and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent and the Lenders; and
(vii) The Agent shall have received a copy of the signed order (the “Company Counsel”), ‘‘Amendment Order’’) of the Bankruptcy Court in substantially the form attached hereto as Annex III authorizing and approving the transactions contemplated hereby. The Amendment Order (i) shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, be in form and substance satisfactory to the Purchaser; Agent, (ii) shall be certified by the Company shall have furnished to the Purchaser the opinion Clerk of the Company’s General Counsel in form and substance satisfactory to the Purchaser; and Bankruptcy Court as having been duly entered, (iii) Irvine Law Group, P.C., special tax counsel to shall approve the Guarantor shall have delivered an opinion in form and substance satisfactory to payment by the Purchaser. In rendering their opinion, the Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees Borrowers of all of the Company, the Guarantor and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the Purchaser) and by and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts fees set forth in the law of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
(d) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice PresidentFee Letter, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, (iv) shall be in full force and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) effect and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any changevacated, reversed, modified, amended or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securitiesstayed.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Post Petition Loan and Security Agreement (W R Grace & Co)
Conditions. The obligations of On the parties under this Purchase Agreement are subject to the following conditionsClosing Date:
(a) The representations and warranties contained herein Administrative Agent shall be accurate have received a Borrowing Request as of the date of delivery of the Preferred Securitiesrequired by Section 2.02.
(b) [Reserved]The representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects on and as of the Closing Date, except to the extent such representations and warranties expressly relate to an earlier date.
(c) ▇▇▇▇▇▇At the time of and immediately after the issuance of the Loans, ▇▇▇▇no Default or Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received, on behalf of itself, the Lenders, a favorable written opinion of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ , LLP, counsel for Holdings and the Sellers (the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National AssociationBorrower, in form and substance satisfactory to the Purchaser; Administrative Agent and (ii) Holland & ▇▇▇▇ LLP, local counsel for Holdings and the Company shall have furnished to the Purchaser the opinion of the Company’s General Counsel Borrower, in form and substance satisfactory to the PurchaserAdministrative Agent, in each case, (A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders, and (C) covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and Holdings and the Borrower hereby request such counsel to deliver such opinions.
(e) All legal matters incident to this Agreement, the Loans and the other Loan Documents shall be satisfactory to the Lenders and to the Administrative Agent.
(f) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, or, if there has been no change in such documents since the Initial Closing Date, a certificate of the Secretary or other appropriate officer acceptable to the Administrative Agent of each Loan Party to that effect, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, or, if there has been no change in such documents since the Initial Closing Date, a statement to that effect, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) Irvine Law Group, P.C., special tax counsel a certificate of another officer as to the Guarantor incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above and (iv) such other documents as the Lenders or the Administrative Agent may reasonably request; and.
(g) The Administrative Agent shall have delivered an received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of this Section 4.01, which certification may be made in the Borrowing Request.
(h) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(i) Except as set forth in Section 5.13, the Security Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on behalf of the Secured Parties shall have a security interest in the Collateral of the type and priority described in each executed Security Document.
(j) The Lenders shall have received the financial statements and opinion referred to in Section 3.05, none of which shall demonstrate a material adverse change in the financial condition of the Borrower from (and shall not otherwise be materially inconsistent with) the financial statements or forecasts previously provided to the Lenders.
(k) The Lenders shall have received, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(l) The Collateral Agent shall have received a Perfection Certificate with respect to the Loan Parties dated on or prior to the Closing Date and duly executed by a Responsible Officer of Holdings and the Borrower, and shall have received the results of a search of the Uniform Commercial Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in each case as indicated on such Perfection Certificate, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 6.02 or have been or will be contemporaneously released or terminated.
(i) Except as set forth in Section 5.13, each of the Security Documents, in form and substance satisfactory to the Purchaser. In rendering their opinionLenders, the Company Counsel may rely as relating to factual matters upon certificates or other documents furnished by officers, directors and trustees each of the Company, Mortgaged Properties shall have been duly executed by the Guarantor parties thereto and the Trust and by government officials (provided, however, that copies of any such certificates or documents are delivered to the PurchaserCollateral Agent and shall be in full force and effect, (ii) and by and upon each of such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law of any other jurisdiction. Such Company Counsel Opinion Mortgaged Properties shall not state that they are be subject to be governed or qualified byany Lien other than those permitted under Section 6.02, or that they are otherwise subject to, any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord (iii) each of the ABA Section of Business Law (1991).
(d) The Purchaser such Security Documents shall have been furnished filed and recorded in the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
recording office as specified on Schedule 3.19(c) (e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex D hereto.
(g) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex E hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice Presidentlender’s title insurance policy, and Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and the Trust shall have furnished to the Purchaser a certificate of the Trust, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the representations and warranties in this Purchase 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 and the Trust, as applicable, have 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; and
(ii) since October 31, 2004 (as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance acceptable to the Purchaser Collateral Agent, insuring such Security Document as a first lien on such Mortgaged Property (subject to any Lien permitted by Section 6.02) shall have been received by the Collateral Agent) and, in connection therewith, the Collateral Agent shall have received evidence satisfactory to it of each such filing and recordation and (iv) the Collateral Agent shall have received such other documents, including a policy or its counselpolicies of title insurance issued by a nationally recognized title insurance company, this Purchase Agreement together with such endorsements, coinsurance and all the Purchaser’s obligations hereunder reinsurance as may be canceled at the Closing Date requested by the Purchaser. Notice Collateral Agent and the Lenders, insuring the Mortgages as valid first liens on the Mortgaged Properties, free of Liens other than those permitted under Section 6.02, together with such cancellation surveys, abstracts, appraisals and legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent or the Lenders.
(n) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be given endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance satisfactory to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacityAdministrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Rentech Inc /Co/)
Conditions. The obligations of the parties under Agent and the Lenders to enter into this Purchase Agreement and to advance $12,000,000 on the Closing Date are subject to the satisfaction of the following conditionsconditions precedent that (a) all matters incident to the consummation of the transactions contemplated herein shall be reasonably satisfactory to the Agent and the Lenders and (b) the Agent shall have received, reviewed and approved the following documents and other items, appropriately executed when necessary and, where applicable, acknowledged by one or more Responsible Officers or other duly authorized representatives of each of the Borrowers party to a relevant document or of the General Partner of certain of the Borrowers party to a relevant document, as the case may be, acting on behalf of the relevant Borrower, or others as the case may be, all in form and substance reasonably satisfactory to the Agent and dated, where applicable, of even date herewith or a date prior thereto and acceptable to the Agent:
(a) The representations multiple counterparts of this Agreement as requested by the Agent;
(b) the Notes to be in effect on the Closing Date;
(c) copies of the organizational documents of each of the Borrower, accompanied by a certificate dated the Closing Date issued by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner, to the effect that each such copy is correct and warranties contained complete;
(d) a certificate of incumbency dated the Closing Date, including specimen signatures of all officers or other representatives of the relevant Borrower or its General Partner, who are authorized to execute Loan Documents on behalf of the relevant Borrower or its General Partner, such certificate being executed by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner;
(e) copies of resolutions adopted by the relevant governing body each of the Borrowers or of its General Partner approving the Loan Documents to which the relevant Borrower is a party and authorizing the transactions contemplated herein shall be accurate and therein, accompanied by a certificate dated the Closing Date issued by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner, to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified or rescinded in any respect and are in full force and effect as of the date of delivery such certificate;
(f) subject to the provisions of clause (d) of Section 5.24, the following documents establishing Liens in favor or for the benefit of the Preferred Securities.Agent for the benefit of the Lenders, in and to the Collateral, including Mortgaged Properties constituting one hundred percent (100%) of the aggregate discounted present value, determined by the Agent, consistent with the customary lending practices of the Agent, of the Proved Reserves attributable to the Oil and Gas Properties of the Borrowers or any of them:
(bi) [Reserved].security documents covering all Oil and Gas Properties (for the avoidance of doubt, including fee mineral interests) of the Borrowers or any of them sufficient for the Borrowers to be in compliance with the provisions of Section 5.5;
(cii) ▇▇▇▇▇▇security documents covering assets of each of the Borrowers as to which a security interest against such assets may be created and perfected under the provisions of the UCC or the Uniform Commercial Code as adopted and in effect in states of the United States of America other than the State of New York, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for including the Sellers Equity Interests in each of the Borrowers;
(the “Company Counsel”), shall have delivered an opinion, dated the Closing Date, addressed iii) financing statements constituent to the Purchaser documents described in clauses (i) and JPMorgan Chase Bank, National Association(ii) above in this Section 3.2(f);
(iv) the Direction Letters (as executed only by one or more of the Borrowers);
(v) undated letters, in form and substance reasonably satisfactory to the Purchaser; Agent, from each of the Borrowers owning interests in Oil and Gas Properties (iifor the avoidance of doubt, including fee mineral interests) or interests in any pipelines or gathering systems transporting natural gas or petroleum products (A) owned by Persons other than the Company shall have furnished Borrower owning such interests or (B) owned by the Borrower owning such interests and to be sold to others to each purchaser of production and disburser of the proceeds of production from or attributable to the Purchaser Mortgaged Properties or transportation fees, with the opinion addresses left blank, authorizing and directing the addresses to make future payments attributable to production from the Mortgaged Properties owned by the relevant Borrower or transportation fees directly to the Lockbox of such Borrower;
(vi) a Blocked Account Agreement among MOMC, LegacyTexas Bank and the Agent with respect to the Lockbox Account; and
(vii) a Deposit Account Control Agreement with shifting control among the Borrowers, the Agent and LegacyTexas Bank with respect to each Operating Account.
(g) a copy of the Company’s General Counsel Lockbox Services Agreement between MOMC and LegacyTexas Bank;
(h) multiple counterparts of the Subordination Agreement, as requested by LegacyTexas Bank;
(i) multiple counterparts of the Assignment of ORRI;
(j) copies of the East LA PSA and each amendment thereto through the Seventh Amendment to Purchase and Sale Agreement dated June 2, 2016;
(k) a copy of a fully executed counterpart of the East LA Operating Agreement;
(l) a copy of a fully executed counterpart of an additional amendment to the East LA PSA extending the deadline for the closing of the acquisition by MI which is the subject of the East LA PSA to a date no earlier than June 15, 2016;
(m) copies of fully executed counterparts of the Sansinena PSA and each amendment thereto through the Eighth Amendment to Purchase and Sale Agreement dated June 2, 2016;
(n) a copy of a fully executed counterpart of the Sansinena Operating Agreement;
(o) a copy of a fully executed counterpart of an additional amendment to the Sansinena PSA extending the deadline for the closing of the acquisition by MI which is the subject of the Sansinena PSA to a date no earlier than June 15, 2016;
(p) a copy of a fully executed counterpart of the Joint Acquisition Agreement; Operating Agreement dated effective April 1, 2016 between MI, as Operator, and Sunny Frog Oil, LLC;
(q) a copy of a fully executed counterpart of the conveyance by MI to Sunny Frog Oil, LLC pursuant to the Joint Acquisition Agreement;
(r) a copy of the Development Plan;
(s) copies of executed counterparts of all operating, lease, sublease, royalty, sales, exchange, processing, farmout, bidding, pooling, unitization, communitization and other agreements relating to the Oil and Gas Properties (for the avoidance of doubt, including fee mineral interests) of the Borrowers or any one or more of them, as reasonably requested by the Agent or any Lender prior to the Closing Date;
(t) a Reserve Report prepared as of January 1, 2016 and in compliance with the requirements for engineering reports set forth in the definition of Reserve Report in Section 1.2.
(u) drafts of the not yet issued annual audited Financial Statements prepared as of December 31, 2015 and unaudited quarterly Financial Statements prepared as of March 31, 2016;
(v) payment of structuring fee in the amount of $240,000;
(w) copies of all employment agreements between any of the Borrowers and members of the senior management of the relevant Borrower;
(x) certificates dated as of a recent date from the appropriate Governmental Authority evidencing the existence or qualification and, if applicable, good standing of each of the Borrowers in its jurisdiction of organization and in each jurisdiction in which it owns material assets or conducts material operations;
(y) results of searches of the uniform commercial code records of the Secretary of State of the State of California and the Secretary of State of the State of Texas, as applicable, in the names of each of the Borrowers, such search reports to be from a source or sources acceptable to the Lender and reflecting no Liens, other than Permitted Liens, against any of the Collateral as to which perfection of a Lien is accomplished by the filing of a financing statement.
(z) subject to the provisions of clause (d) of Section 5.24, confirmation, acceptable to the Agent, of the title of the Borrowers or any of them owning any Mortgaged Properties, free and clear of Liens other than Permitted Liens, to Mortgaged Properties constituting, in the aggregate, one hundred percent (100%) of the PV-10 value, as determined by the Agent in its discretion, of the PDP Reserves and PUD Reserves attributable to the Mortgaged Properties;
(aa) a certificate or certificates evidencing the insurance coverage required by the provisions of Section 5.19;
(bb) a payoff letter from LegacyTexas Bank, in form and substance satisfactory reasonably acceptable to the Purchaser; and Agent, setting forth, among other matters, the amount due on the Closing Date to pay in full all amounts owing by any of the Borrowers to LegacyTexas Bank;
(iiicc) Irvine Law Grouprelease documents from LegacyTexas Bank, P.C., special tax counsel to the Guarantor shall have delivered an opinion in form and substance satisfactory reasonably acceptable to the Purchaser. In rendering their opinionAgent, the Company Counsel may rely as necessary to factual matters upon certificates or other documents furnished release all Liens held by officers, directors and trustees LegacyTexas Bank against Property of any of the Company, Borrowers and securing the Guarantor and Indebtedness which is the Trust and by government officials subject of the payoff letter referred to in clause (provided, however, that bb) immediately above;
(dd) copies of any such certificates or documents are delivered all Commodity Hedge Agreements, in form and substance reasonably acceptable to the PurchaserAgent and with Approved Hedge Counterparties, establishing the Minimum Required Commodity Hedge Agreements;
(ee) payment from the Borrowers or any one or more of them of estimated fees charged by filing officers and by other public officials incurred or to be incurred in connection with the filing and upon such other documents as such counsel may, in their reasonable opinion, deem appropriate as a basis for the Company Counsel’s opinion. The Company Counsel may specify the jurisdictions in which they are admitted to practice and that they are not admitted to practice in any other jurisdiction and are not experts in the law recordation of any other jurisdiction. Such Company Counsel Opinion shall not state that they are to be governed or qualified by, or that they are otherwise subject to, Security Documents and any treatise, written policy or other document relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section release documents provided by LegacyTexas Bank and for which invoices have been presented as of Business Law (1991).the Closing Date;
(dff) The Purchaser shall have been furnished the opinion of Mayer, Brown, ▇▇▇▇ & Maw LLP, special tax counsel for the Purchaser, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex B hereto.
(e) The Purchaser shall have received the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser, JPMorgan Chase Bank, National Association, the Delaware Trustee and the Company, in substantially the form set out in Annex C hereto.
(f) The Purchaser shall have received the opinion of Gardere P▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special counsel for the Property Trustee and the Indenture Trustee, dated the Closing Date, addressed to the PurchaserBorrowers for purposes of the transactions which are the subject of this Agreement, in substantially form and substance reasonably satisfactory to the form set out in Annex D hereto.Agent;
(ggg) The Purchaser shall have received the opinion of J▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A.A Professional Law Corporation, special Delaware counsel for the Delaware Trustee, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National AssociationBorrowers in the State of California for purposes of the transactions which are the subject of this Agreement, in substantially form and substance reasonably satisfactory to the form set out in Annex E hereto.Agent;
(hhh) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or a Vice President, and Chief Financial Officer, Treasurer or Assistant Treasurer Responsible Officer of each of the Company, and the Trust shall have furnished Borrowers to the Purchaser a certificate effect that, after giving effect to the transactions which are the subject of the Trustthis Agreement, signed by an Administrative Trustee of the Trust, in each case dated the Closing Date, and, in the case of the Company, as to (i) and (ii) below and, in the case of the Trust, as to (i) below.
(i) the all representations and warranties made by any of the Borrowers in this Purchase Agreement or any other Loan Agreement in place on the Closing Date are true and correct on and correct, in all material respects, as of the Closing Date with Date;
(ii) confirmation reasonably acceptable to the same effect as if made on Agent that no event or circumstance shall have occurred which could reasonably be expected to have a Material Adverse Effect;
(jj) payment of estimated fees and expenses of counsel to the Agent incurred through the Closing Date, Date and the Company and the Trust, as applicable, have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior for which an invoice has been presented to the Closing DateBorrowers; and
(iikk) since October 31such other agreements, 2004 (documents, instruments, opinions, certificates, waivers, consents and evidences as defined below), there has been no material adverse change in the condition (financial or other), earnings, business or assets of the Company and its subsidiaries taken as a whole, whether or not arising from transactions occurring in the ordinary course of business (a “Material Adverse Change”).
(i) Subsequent to the execution of this Purchase Agreement, there shall not have been any change, Agent or any development involving a prospective change, in or affecting the condition (financial or other), earnings, business or assets of the Guarantor and its subsidiaries, taken as a whole whether or not occurring in the ordinary course of business, the effect of which is, in the Purchaser’s judgment, so material and adverse as to make it impractical or inadvisable to proceed with the purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and the Trust shall have furnished to the Purchaser and its counsel such further information, certificates and documents as the Purchaser or its counsel Lender may reasonably request. If any of the conditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, or if any of the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchaser or its counsel, this Purchase Agreement and all the Purchaser’s obligations hereunder may be canceled at the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company, the Guarantor and the Trust in writing or by telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Trust or any officer of the Company or the Guarantor and delivered to the Purchaser or the Purchaser’s counsel in connection with the Operative Documents and the transactions contemplated hereby and thereby shall be deemed to be a representation and warranty of the Trust, the Guarantor and/or the Company, as the case may be, and not by such trustee or officer in any individual capacity.
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