Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate): (a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available. (b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP. (c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware. (d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership: (i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party. (ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally. (iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business. (iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein. (e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership: (i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement. (ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally. (iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business. (iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Limited Partnership Agreement (Cogentrix Energy Inc), Limited Partnership Agreement (Ecoscience Corp/De)
Conditions. The obligation effectiveness of Cogentrix GP any Incremental Amendment, and Cogentrix LP to make the contributions described in Section 3.2 are Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organizedwith respect to any Incremental Revolving Commitments, validly existing and in good standing under the laws of the State of Delawareafter giving effect to such Incremental Revolving Commitments, the ownership of which is 99% by Agro Power and 1% by VF (condition set forth in the case of VF DelawareSection 3.02(a) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.shall be satisfied;
(ii) This Agreement no Default or Event of Default shall have occurred and the Project Documents and Project Loan Documents be continuing or would result after giving effect to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.such Incremental Commitments;
(iii) Neither on the executionIncremental Facility Closing Date, delivery or performance by VF Delaware or VF of this Agreement or any after giving effect to the Incremental Commitments then being established (assuming a borrowing of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitationmaximum amount of Loans available under any Incremental Revolving Commitment then being established), the assignment Consolidated Interest Coverage Ratio of the Project Documents Borrower and Project Assets to its Restricted Subsidiaries for the Partnership, requires the consent or authorization of any other party (except such as most recently ended four full fiscal quarters for which financial statements have been duly obtaineddelivered pursuant to Section 5.06(a) or (b), shall be at least 2.00 to 1.00, determined on a pro forma basis as if such Incremental Term Loans or conflicts or will conflict with or result in a breach or violation Incremental Revolving Loans, as applicable, had been incurred on the first day of its charter documents or bysuch four-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.quarter period;
(iv) It is not an "investment company" to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (A) board resolutions and officers’ certificates consistent with those delivered on the Closing Date and customary legal opinions addressed to the Administrative Agent, the Collateral Agent and the Lenders, other than changes to such legal opinion resulting from a Change in Law, change in fact or a company "controlled" change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (B) such Security Documents, reaffirmation agreements and/or such amendments to the Security Documents (including modifications to the Ship Mortgages), as may be reasonably requested by an "investment company" within the meaning Administrative Agent in order to ensure that the enforceability of the Investment Company Act Security Documents and the perfection and priority of 1940, as amended.the Liens thereunder are preserved and maintained;
(v) The representations each new Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and warranties an integral multiple of VF Delaware or VF or any of their respective Affiliates $1,000,000 in or pursuant to any of excess thereof (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully limit set forth herein.in Section 2.14(a) above);
(evi) The following representations or warranties each new Incremental Revolving Commitment shall be true in an aggregate principal amount that is not less than $5,000,000 and correct an integral multiple of $1,000,000 in excess thereof (provided that such amount may be less than $5,000,000 if such amount represents all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to remaining availability under the Partnership:limit set forth in Section 2.14(a) above); and
(ivii) Each of Cogentrix GP such other conditions as the Borrower and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreementeach Incremental Lender providing such Incremental Commitments shall agree.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Credit Agreement (Vantage Drilling International), Credit Facility Agreement
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are Each Transfer is subject to the satisfaction of each all of the following conditions precedent terms and conditions:
(except those conditionsa) If Landlord approves a Transfer, Tenant shall pay to Landlord as Additional Rent fifty percent (50%) of the amount, if any, that may by which the rent, any additional rent and any other sums payable by the assignee or subtenant to Tenant under such assignment or sublease, after deduction of Tenant’s actual and documented out of pocket costs incurred in connection with such assignment of sublease, exceeds the total of the Base Rent plus any Additional Rent payable by Tenant hereunder which is allocable to the portion of the Premises which is the subject of such assignment or sublease. The foregoing payments shall be specifically waived in writing made on a monthly basis by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents Tenant. Landlord shall have been approved by the Management Committee and the Project Loan Documents will be executed by right to review all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availablerecords which support said payments.
(b) All conditions No consent to the closing any Transfer shall constitute a waiver of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) provisions of this Article, and all governmental consents, approvals, permits and licenses and other deliveries subsequent Transfers may be made only in connection accordance with the Project which are required provisions of this Section 12. Consent by Landlord shall not be construed to be received permit reassignment or resubletting by the Construction/Term Lender as a condition to the funding permitted assignee or sublessee. No portion of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall Premises may be provided to Cogentrix GP and Cogentrix LPsub-sublet.
(c) The contribution by VF Delaware contemplated by Section 3.1(aTenant shall remain liable for all Lease obligations, and, without limitation, any guaranty of this Lease (if any) shall have been made be unaffected by such Transfer and shall remain in full force and effect for all purposes. An assignee of Tenant, at the option of Landlord, shall become directly liable to the satisfaction Landlord for all obligations of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP Tenant hereunder, but no Transfer by Tenant shall have been provided to them by VF Delawarerelieve Tenant of any liability hereunder.
(d) The following representations or warranties Any Transfer in violation of this Section 12 shall be true voidable by Landlord and correct in all respectsshall, at the option of Landlord, constitute a default under this Lease. Following any Transfer, Landlord may collect rent from the assignee, transferee, subtenant or occupant and are hereby made apply the net amount collected to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each rent, but no such collection shall be deemed a waiver of VF and VF Delaware (A) is a limited liability company duly organizedthis covenant, validly existing and in good standing under the laws acceptance of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) assignee or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained)subtenant hereunder, or conflicts or will conflict with or result in a breach or violation release of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth hereinTenant hereunder.
(e) The following term of any Transfer shall not extend beyond the Term.
(f) Tenant shall pay to Landlord a Five Hundred Dollar ($500) processing fee, which shall accompany the Transfer Notice. Tenant shall reimburse Landlord upon demand for any additional out-of-pocket costs above and beyond the processing fee (not to exceed $2,500 in connection with Landlord’s review of any subleasing request by Tenant) incurred by Landlord in connection with such request, including legal fees, without regard to whether Landlord gives its consent.
(g) The proposed assignee or subtenant shall provide Landlord with the names of all persons holding a ten percent (10%) or greater ownership interest in the assignee or subtenant for purposes of compliance with Presidential Executive Order 13224 (for so long as such Presidential Executive Order remains in effect) and must confirm in writing satisfactory to Landlord that all of the representations or and warranties shall be in Section 35 below are true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions with respect to the Partnership:
(i) Each proposed assignee or subtenant and agreeing to be bound by terms and conditions of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementSection 35.
(iih) This Agreement and Project Loan Documents Landlord’s denial of consent to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP proposed Transfer shall not cause a termination of this AgreementLease. At the option of Landlord, nor compliance a surrender and termination of this Lease shall operate as an assignment to Landlord of some or all subleases or subtenancies. Landlord shall exercise this option by it with the terms and provisions hereof, requires the consent or authorization giving notice of any other party (except that assignment to such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businesssubtenants.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Office Lease, Office Lease (Redfin CORP)
Conditions. The obligation obligations of Cogentrix GP the Agent hereunder shall be conditional upon the Agent receiving, and Cogentrix LP the Agent shall have the right on the Closing Date or on each Closing Date if there is more than one closing, on behalf of Subscribers to make withdraw all Subscription Agreements delivered and not previously withdrawn, unless the contributions described in Section 3.2 are subject Agent receives, on or prior to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):Closing Date:
(a) The Project Credit Facilities a legal opinion of the Corporation's counsel addressed to the Agent, the Agent's counsel and the Project Loan Documents shall have been approved by the Management Committee Subscribers in form and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof substance reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided the Agent, with respect to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF such matters as an inducement to their making capital contributions the Agent may reasonably request relating to the Partnershipoffering, issuance and sale of the Convertible Debentures, including, without limitation, that as at the Closing Date:
(i) Each of VF the Corporation is valid and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing subsisting under the laws of the State its jurisdiction of Delaware, the ownership of which is 99% by Agro Power incorporation and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full all requisite corporate power and authority to carry on its business as now conducted by it and to own its assets and is qualified to carry on business under the legal right to incur the obligations provided for laws of each jurisdiction in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is carries on a party.material portion of its business;
(ii) This the Corporation has full corporate power and authority to enter into this Agreement, the Indenture, the Security Agreement and the Project Documents Subscription Agreements and Project Loan Documents to which it is a party have perform its obligations set out herein and therein, and this Agreement has been and the Security Agreement, the Subscription Agreements and the Indenture will, on the Closing Date, be duly authorized, executed and delivered by VF Delaware and VF the Corporation and constitute the legal, valid and binding obligations of each of VF Delaware and VF the Corporation enforceable against it the Corporation in accordance with their respective terms, except as enforceability may be limited by general equitable principles and by subject to applicable bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization and other laws and equitable principles affecting creditors' rights generally, the statutory and equitable powers of the courts in Canada or similar laws affecting the United States to stay proceedings before them and the execution of judgments and the fact that specific performance and injunctive relief are equitable remedies which may be ordered by a court in its discretion and, accordingly, may not be available as a remedy in an action to enforce a covenant and subject to the fact that the rights of creditors generally.to indemnity, contribution and waiver set forth herein may be limited by applicable laws or the public policy underlying such laws;
(iii) Neither the execution, execution and delivery or performance by VF Delaware or VF of this Agreement, the Indenture, the Security Agreement or any and the Subscription Agreements and the fulfillment of the Project Documents terms hereof or Project Loan Documents to which it is a party, nor thereof by the Corporation and the performance of and compliance by it with the terms and provisions hereof or thereof, including, without limitationof this Agreement, the assignment of Indenture, the Project Documents Security Agreement and Project Assets to the Partnership, requires Subscription Agreements by the consent or authorization of any other party (except such as have been duly obtained), or conflicts or Corporation do not and will conflict with or not result in a breach of, or violation constitute a default under, and do not and will not create a state of its charter documents facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under:
A. any applicable laws of the States of New York or Delaware or the federal laws of the United States applicable therein;
B. any term or provision of the articles, by-laws or resolutions of the directors or shareholders of the Corporation;
C. of which the Corporation's counsel is aware, any of the terms, conditions terms or provisions of any Requirement mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation is a party or by which it is bound on the Closing Date; or
D. of Law which Corporation’s counsel is aware, any judgment, decree or order applicable to it the Corporation, which default or breach might reasonably be expected to materially adversely affect the business, operations, capital or condition (financial or otherwise) of the Corporation or its assets properties or businessassets.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning form and terms of the Investment Company Act certificates representing the Convertible Debentures have been approved and adopted by the board of 1940, as amended.directors of the Corporation and conform with applicable law and the constating documents of the Corporation;
(v) the Common Shares to be issued on conversion of the Convertible Debentures have been reserved and allotted for issuance and, when issued upon conversion of the Convertible Debentures will be validly issued, fully paid and non-assessable Common Shares of the Corporation;
(vi) all Applicable Securities Laws of the Selling Jurisdictions and the United States of America in connection with the creation, offering, issuance and sale of the Convertible Debentures and Underlying Securities have been complied with by the Corporation and no registration under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), is required for the offer and sale of the Convertible Debentures and the issuance of the Underlying Securities upon conversion of the Convertible Debentures, assuming distribution by the Corporation in compliance with the relevant provisions of such Applicable Securities Laws;
(vii) The Security Agreement creates a valid security interest in the Collateral in favor of the Debenture Trustee for the benefit of the Debentureholders to secure the Obligations (as such term is defined in the Security Agreement). Under Article 9 of the Uniform Commercial Code as enacted in the State of New York (the “UCC-NY”), while a debtor is “located” in a jurisdiction, the local law of that jurisdiction governs perfection of a security interest granted by such debtor which can be perfected by the filing of a Uniform Commercial Code financing statement. Under the UCC-NY, the Corporation is “located” in the State of Delaware and the Uniform Commercial Code in effect in the State of Delaware (the “UCC-DE”) governs perfection of a security interest granted by such Company which can be perfected by the filing of a Uniform Commercial Code financing statement in the office of the Secretary of State of the State of Delaware. The Financing Statement is sufficient in form to perfect a security interest of the Debenture Trustee in the Collateral, to the extent a security interest in such Collateral may be perfected under the UCC-DE by filing a financing statement with the Secretary of State of Delaware. Upon proper filing of the Financing Statement with the Secretary of State of Delaware, the Debenture Trustee will have a perfected security interest in the Collateral to the extent that a security interest can be perfected therein by the filing of a financing statement with the Secretary of State of Delaware.
(viii) The choice of Alberta law to govern this Agreement, the Indenture and the Subscription Agreements and the choice of New York law to govern the Security Agreement are valid choices of law under the laws of the States of Delaware and New York and the Province of Alberta and will accordingly be applied by courts in such jurisdictions.
(ix) The State of New York has enacted the Uniform Foreign Country Money Judgments Recognition Act, which appears in the Consolidated Laws of New York at Sections 5301 to 5309. Under those Sections, a judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for (a) taxes, or (b) a fine or other penalty, or (c) in matrimonial or family matters, is conclusive between the parties to the extent that it grants or denies recovery of a sum of money, and the foreign judgment is enforceable in the same manner as the judgment of another state which is entitled to full faith and credit but is not conclusive under certain circumstances listed in the statute. In particular, we note that Section 5305(a)(3) of Consolidated Laws of New York provides that a foreign judgment shall not be refused recognition for lack of personal jurisdiction if the defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved. We also note that the Corporation has agreed to the submission to the jurisdiction of the courts of Alberta under this Agreement, the Indenture and the Subscription Agreements. We are aware of no statutory or judicial authority under New York law that would suggest that the Corporation’s submission to the jurisdiction of the courts of Alberta under such documents would not be given effect in New York. and additionally relating to:
(i) the distribution of the Underlying Securities issuable on conversion of the Convertible Debentures;
(ii) the first trade in the Convertible Debentures and the Common Shares issuable on conversion of the Convertible Debentures; and
(iii) the authorized and issued capital of the Corporation; and as to all other legal matters, in any way connected with the Offering and issuance, sale and delivery of the Convertible Debentures as the Agent may reasonably request. It is understood that the Corporation's counsel may rely on the opinions of local counsel acceptable to it as to matters governed by the laws of jurisdictions other than the jurisdiction of residence of such counsel and on certificates of officers of the Corporation and public officials as to relevant matters of fact.
(b) a certificate of the Corporation dated the Closing Date, addressed to the Agent and signed on the Corporation's behalf by its President or such other officer or director of the Corporation satisfactory to the Agent, acting reasonably, certifying that:
(i) the Corporation has complied with and satisfied in all material respects all covenants and conditions of this Agreement on its part to be complied with or satisfied at or prior to the Closing Time except to the extent same have been waived by the Agent;
(ii) the representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully Corporation set forth herein.
(e) The following representations or warranties shall be in this Agreement and, where applicable, in the Subscription Agreements are true and correct in all respectsmaterial respects at the Closing Time, and are hereby as if made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.at such time;
(iii) Neither no event of a nature referred to in subsection 12(b)(i), (iii), (vi) or (ix) has occurred since the execution, delivery or performance by Cogentrix GP and Cogentrix LP date of this AgreementAgreement or to the knowledge of such officer is pending, nor compliance by it with the terms and provisions hereof, requires the consent contemplated or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.threatened;
(iv) It the Corporation has made and/or obtained, at or prior to the Closing Time, all necessary filings, approvals, consents and acceptances under Applicable Securities Laws, and under any applicable agreement or document to which the Corporation is not an "investment company" a party or a company "controlled" by an "investment company" within the meaning which it is bound in respect of the Investment Company Act execution and delivery of 1940this Agreement and the offering and sale of the Convertible Debentures and the consummation of the transactions contemplated hereby; and
(v) no order suspending the sale or ceasing the trading of securities of the Corporation has been issued and no proceedings for that purpose have been instituted or are pending or to the knowledge of such officer are threatened under Applicable Securities Laws;
(c) definitive certificates for the Convertible Debentures subscribed for pursuant to the Offering, registered in such name or names as amendedthe Agent shall notify the Corporation in writing not less than 24 hours prior to the Closing Time, provided such certificates registered in such names may, subject to receipt by the Corporation, be delivered in advance of the Closing Date to the Agent or such other parties in such locations as the Agent may direct and the Agent and the Corporation may agree upon;
(d) executed copies of the Subscription Agreements in form and substance reasonably satisfactory to the Agent and the Agent's counsel;
(e) payment of all commissions payable by the Corporation to the Agent pursuant to section 8 and all expenses payable by the Corporation pursuant to section 9, provided that such payment may be made by deducting such fees and expenses from the gross proceeds of the Offering in accordance with Section 10(b); and
(f) such other matters as may be reasonably requested by the Agent. The foregoing conditions are for the sole benefit of the Agent and may be waived in whole or in part by the Agent at any time and without limitation, and the Agent shall have the right, if any of the foregoing conditions are not met, on behalf of potential Subscribers, to withdraw all Subscription Agreements delivered and not previously accepted by the Corporation or withdrawn or rescinded by such persons. If any of the foregoing conditions are not met on or before the Closing Date, the Agent may terminate its obligations under this Agreement without prejudice to any other remedies it may have.
Appears in 2 contracts
Sources: Agency Agreement (Red Mile Entertainment Inc), Agency Agreement (Red Mile Entertainment Inc)
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are this Amendment is subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities and the Project Loan Documents Borrowers shall have been approved executed and delivered to the Collateral Agent (or shall have caused to be executed and delivered to the Collateral Agent by the Management Committee appropriate Persons), the following, in each case in form and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions substance satisfactory to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the PartnershipCollateral Agent:
(i) Each a Secured Promissory Note payable to the order of VF each of the Lenders, in the original principal amount equal to such Lender’s Term Loan B Commitment; an amended and VF Delaware restated Secured Promissory Note payable to the order of each of the Lenders, in the original principal amount equal to such Lender’s Term Loan A Commitment; and an amended and restated Secured Promissory Note payable to the order of each of the Lenders, in the original principal amount equal to such Lender’s Revolving Credit Commitment;
(Aii) an amendment to the Subordination Agreement acknowledging and permitting the increased Aggregate Revolving Credit Commitments and the increased Aggregate Term Loam Commitments;
(iii) All of the Security Documents, including without limitation, Uniform Commercial Code Financing Statements and Termination Statements, control agreements from depository institutions, amendments to the pledge agreement from EBC to cover the ownership interests of each New Borrower and delivery of all certificates evidencing ownership interests of each New Borrower and all mortgages, deeds of trusts and amendments thereto, lessor consents and waivers and related title insurance policies, if any, required by Collateral Agent or its counsel, in connection with New Borrowers’ compliance with the provisions of Section 2.16 of the Credit Agreement, as amended hereby, to the extent not previously delivered to Collateral Agent;
(iv) Certified copies (attached as required in Part A of the form attached as Schedule 3.01 to the Credit Agreement) of all corporate or other action taken by each New Borrower and the Equity Holders of each New Borrower authorizing the execution and delivery of the Notes to which it is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF party (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken including all necessary action to authorize resolutions authorizing the execution, delivery and performance of this Agreement Amendment by such New Borrower and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement transactions contemplated hereby, the incurrence of the Obligations and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any granting of the Project Documents or Project Liens contemplated by the Loan Documents to which it is a party, nor compliance to the extent required by it with the terms Organizational Documents applicable thereto) which have been properly adopted and provisions hereof have not been modified or thereof, including, without limitation, the assignment amended;
(v) A copy of the Project Organizational Documents and Project Assets of each New Borrower, with any amendments thereto, certified by a Duly Authorized Officer of such New Borrower (attached as required in Part A of the form attached as Schedule 3.01 to the PartnershipCredit Agreement);
(vi) The names, requires true signatures and incumbency of all Duly Authorized Officers of each New Borrower which is party to a Loan Document;
(vii) For each New Borrower, certificates of legal existence and good standing (and, if available, tax matters) issued as of a reasonably recent date by the consent Secretary of State of such New Borrower’s state of formation or authorization organization and of any other state in which such New Borrower is authorized or qualified to transact business or in which any Collateral owned by such New Borrower is located;
(viii) True and correct copies of all Licenses, and all other material governmental licenses, franchises and permits, all material FCC Consents, Final Orders and other third party consents and all other material leases, contracts, agreements, instruments and other documents as the Collateral Agent may require;
(except ix) Such Lien Searches with respect to the New Borrowers and any other third parties as Collateral Agent shall require, the results thereof to be satisfactory to Collateral Agent;
(x) The Budget and Projections (each updated to take into account contemplated Acquisitions) and historical financial statements of the New Borrowers, to the extent not previously delivered to the Collateral Agent;
(xi) The Environmental Site Assessments for all owned Properties, the Environmental Questionnaires for all leased Properties (as required by Lenders) and similar diligence referenced to in Section 4.21 of the Credit Agreement, as amended hereby, to the extent not previously delivered;
(xii) Certificates of insurance evidencing the insurance coverage and policy provisions required in the Credit Agreement, as amended hereby, for the New Borrowers;
(xiii) The Collateral Agent’s receipt of an appraisal of each of the Stations owned or to be owned by the Borrowers, setting forth the current fair market value and Compressed Sale Value of such Station and otherwise satisfactory to Collateral Agent and Lenders; and
(xiv) Such other supporting documents and certificates as have been duly obtained)the Collateral Agent, the Administrative Agent, or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessLenders may reasonably request.
(ivb) It is not an "investment company" or a company "controlled" by an "investment company" within Collateral Agent shall have received:
(i) the meaning favorable written opinion of general corporate counsel to the New Borrowers dated as of the Investment Company Act date hereof, addressed to the Collateral Agent, the Administrative Agent, and Lenders and reasonably satisfactory to the Collateral Agent in scope and substance; and
(ii) the favorable written opinion of 1940special communications counsel to the Borrowers, dated as amendedof the date hereof, addressed to the Collateral Agent, the Administrative Agent, and Lenders and reasonably satisfactory to the Collateral Agent, the Administrative Agent, in scope and substance.
(vc) The representations and warranties of VF Delaware or VF or any of their respective each Borrower and its Affiliates set forth in or pursuant to any of the Project Documents or Project Credit Agreement, as amended hereby, and in the other Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respectsmaterial respects on and as of the effective date of this Amendment and each Borrower shall have performed all obligations which were to have been performed by it hereunder prior to the effective date of this Amendment (unless waived by the Collateral Agent or the Required Lenders).
(d) As of the effective date of this Amendment, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP since the dates of those certain Projections attached as an inducement to their making capital contributions Schedule 4.17 to the Partnership:Credit Agreement and other financial documents delivered to the Collateral Agent prior thereto, no event or circumstance shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(e) Collateral Agent shall have completed satisfactory reviews of Borrowers’ business plans and Projections, adjusted for the planned Acquisitions.
(f) Borrowers shall have paid (i) Each to the Collateral Agent on or before the effective date of Cogentrix GP and Cogentrix LP this Amendment (A) is for the ratable account of each Revolving Credit Lender, a corporation duly organizednon-refundable fee in the amount of $55,000, validly existing and in good standing under the laws of the State of Delaware, (B) has full power for the ratable account of each Term Loan B Lender, a non-refundable fee in the amount of $95,000, (ii) all other fees owed to the Collateral Agent, the Administrative Agent, the Lenders and authority and their respective Affiliates pursuant to the legal right to incur the obligations provided for in this Credit Agreement, as amended hereby, and (Ciii) has taken all necessary action legal fees and expenses of counsel to authorize Agent and Lenders incurred through the execution, delivery and performance of this Agreementdate hereof.
(iig) This Agreement and Project Loan Documents All legal matters incident to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may transactions contemplated hereby shall be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting reasonably satisfactory to counsel for the rights of creditors generallyCollateral Agent.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)
Conditions. 2.1 Subject to the terms of the Mandate Documents, the Underwriter is pleased to offer to underwrite and provide to the Borrower 100% of the Facility.
2.2 The obligation of Cogentrix GP and Cogentrix LP Underwriter’s offer to make underwrite the contributions described in Section 3.2 are Facility is subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities compliance by the Borrower with all the terms of each Mandate Document in all material respects and the Project Loan Mandate Documents shall have not having been approved by terminated in accordance with the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.terms thereof;
(b) All conditions the preparation, execution and delivery of the Facility Agreement (in accordance with the Term Sheet and otherwise in form and substance mutually satisfactory to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility Borrower and the Revolving Facility shall have been delivered Underwriter) by no later than six months after the date of this Letter or received. A copy of all such deliveries any later date agreed between the Borrower and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.Mandated Lead Arranger;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to there being no material adverse changes in the satisfaction business, financial conditions, or assets of Cogentrix GP the Borrower and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.the Target;
(d) The following representations satisfaction of all conditions precedent to utilisation set out in the sections headed “Conditions Precedent” and “Further Conditions Precedent” in the Term Sheet; and
(e) it not being illegal or warranties shall be true unlawful for the Underwriter (or any Affiliate of the Underwriter) if the Underwriter were to perform any of its obligations as contemplated under the Mandate Documents or to fund, make available or maintain its participation under the Facility.
2.3 If it is or becomes unlawful in any applicable jurisdiction for the Underwriter (or any Affiliate of the Underwriter) to perform any of its obligations as contemplated by the Mandate Documents or to fund, make available or maintain its participation under the Facility, the Mandated Lead Arranger shall:
(a) promptly notify the Borrower upon becoming aware of that event; and
(b) in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and correct which would result in all respects, its underwriting in respect of the Facility not being available including (but not limited to) transferring its rights and are hereby made obligations under the Mandate Documents to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipone or more of its Affiliates provided that:
(i) Each the Borrower shall promptly indemnify the Underwriter for all costs and expenses reasonably and properly incurred by the Underwriter as a result of VF and VF Delaware steps taken by it pursuant to this paragraph (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VFb), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.; and
(ii) This Agreement and the Project Documents and Project Loan Documents Underwriter is not obliged to which it is a party have been duly authorizedtake any such steps if, executed and delivered by VF Delaware and VF and constitute in the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any opinion of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party Underwriter (except such as have been duly obtainedacting reasonably), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessdo so might be materially prejudicial to it.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Share Purchase Agreement (Ma Kevin Xiaofeng), Share Purchase Agreement (ATA Inc.)
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditionsshall automatically apply to each Transfer, if any, that may be specifically waived without the necessity of same being stated in writing by Cogentrix GP or Cogentrix LP, as appropriate):referred to in Landlord's written consent:
(a) The Project Credit Facilities Tenant shall execute, have acknowledged and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered deliver to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respectsLandlord, and are hereby made cause the Transferee to Cogentrix GP execute, have acknowledged and Cogentrix LP by VF Delaware deliver to Landlord, an instrument in form and VF as an inducement substance acceptable to their making capital contributions to the Partnership:
Landlord in which (i) Each of VF the Transferee adopts this Lease and VF Delaware (A) is a limited liability company duly organizedassumes and agrees to perform, validly existing jointly and in good standing under the laws severally with Tenant, all of the State obligations of DelawareTenant hereunder, as to the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF)space transferred to it, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement the Transferee grants Landlord an express first and prior contract lien and security interest in its improvements located upon and property brought into the Project Documents and Project Loan Documents transferred premises to which it is a party have been duly authorizedsecure its obligations to Landlord hereunder, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the executionTenant subordinates to Landlord's statutory lien, delivery contract lien and security interest any liens, security interests or performance by VF Delaware or VF of this Agreement or other rights which Tenant may claim with respect to any property of the Project Documents Transferee, (iv) Tenant agrees with Landlord that, if the rent or Project Loan Documents to which it is a partyother consideration due by the Transferee exceeds the Rent for the transferred space, nor compliance by it with the terms then Tenant shall pay Landlord as Rent hereunder all such excess rent and provisions hereof or other consideration immediately upon Tenant's receipt thereof, (v) the Transferee agrees to use and occupy the transferred space solely for the purposes permitted under Article 4 and otherwise in strict accordance with this Lease and (vi) Tenant and acknowledges and agrees in writing that, notwithstanding the Transfer, Tenant remains directly and primarily liable for the performance of all the obligations of Tenant hereunder (including, without limitation, the assignment obligation to pay all Rent), and Landlord shall be permitted to enforce this Lease against Tenant or the Transferee, or either of the Project Documents and Project Assets them, without prior demand upon or proceeding in any way against any other persons, and
(b) Tenant shall deliver to Landlord a counterpart of all instruments relative to the Partnership, requires the consent or authorization of any other party Transfer executed by all parties to such transaction (except such as have been duly obtainedLandlord), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Lease Agreement (Harvest States Cooperatives), Lease Agreement (Harvest States Cooperatives)
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditionsshall automatically apply to each Transfer, if any, that may be specifically waived without the necessity of same being stated or referred to in writing by Cogentrix GP or Cogentrix LP, as appropriate):Landlord’s written consent:
(a) The Project Credit Facilities Tenant shall execute, have acknowledged and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered deliver to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respectsLandlord, and are hereby made cause the Transferee to Cogentrix GP execute, have acknowledged and Cogentrix LP by VF Delaware deliver to Landlord, an instrument in form and VF as an inducement substance acceptable to their making capital contributions to the Partnership:
Landlord in which (i) Each the Transferee adopts each provision of VF this Lease and VF Delaware (A) is a limited liability company duly organizedagrees to perform and be bound by, validly existing jointly and in good standing severally with Tenant, all of the duties, obligations and indemnities of Tenant hereunder, as to the space Transferred to it, as though Transferee were the Tenant under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofLease, including, without limitation, the assignment prohibition against rent based on the income or profits derived from the Premises (any purported lease to the contrary being null and void), (ii) Tenant subordinates to Landlord’s statutory lien and security interest any liens, security interests or other rights which Tenant may claim with respect to any property of the Project Documents Transferee, (iii) Tenant agrees with Landlord that, if the rent or other consideration due by the Transferee exceeds the Rent for the transferred space, then Landlord shall be entitled to an amount equal to fifty percent (50%) of all such excess Rent and Project Assets other consideration, net of reasonable leasing commissions and tenant improvement costs directly required in connection with such Transfer actually paid by Tenant (the “Transfer Premium”), which transfer Premium shall be paid to Landlord within ten (10) days after Tenant’s receipt thereof, (iv) Tenant and the Transferee agree to provide to Landlord, at their expense, direct access from a public corridor in the Building to the Partnershiptransferred space, requires (v) the consent Transferee agrees to use and occupy the Transferred space solely for the purpose specified in Article 4 and otherwise in strict accordance with this Lease, and (vi) Tenant acknowledges that, notwithstanding the Transfer, Tenant remains directly and primarily liable for the performance of all the obligations of Tenant hereunder (including, without limitation, the obligation to pay all Rent), and Landlord shall be permitted to enforce this Lease against Tenant or authorization the Transferee, or all of them, without prior demand upon or proceeding in any way against any other party persons; and
(b) Tenant shall deliver to Landlord a counterpart of all instruments relative to the Transfer executed by all parties to such transaction (except such as have been duly obtainedLandlord), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(ivc) It If Tenant requests Landlord to consent to a proposed Transfer, Tenant shall pay to Landlord, whether or not consent is given, Landlord’s reasonable costs, including, without limitation, reasonable attorneys’ fees, incurred in connection with such request (not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940to exceed, as amendedhowever, $2,000.00 with respect to each proposed Transfer).
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Lease Agreement (Fusion-Io, Inc.), Lease Agreement (Fusion-Io, Inc.)
Conditions. The Purchaser’s obligation of Cogentrix GP and Cogentrix LP to make the contributions described in fund a Purchase Payment or a Drawdown Purchase pursuant to Section 3.2 are 1(a) is subject to the satisfaction of each or waiver in writing of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP on or Cogentrix LP, as appropriate):prior to the date of such Purchase Payment or Drawdown Purchase:
(a) The Project Credit Facilities HoldCo shall have issued the HoldCo LLC Interest to the Purchaser as of the Effective Date and the Project Loan Documents Purchaser shall have been approved by be a party to the Management Committee and HoldCo LLC Agreement as a member of HoldCo in the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availableamount set forth in the HoldCo LLC Agreement.
(b) All conditions to The Form ADV for the closing of the Construction/Term Facility Adviser shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection be effective with the Project which are required to be received by U.S. Securities and Exchange Commission (the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP“SEC”).
(c) The contribution by VF Delaware contemplated by Section 3.1(a) Solely with respect to the BDC Capital Commitment, the BDC Form 10 shall have been made to become effective in accordance with the satisfaction Securities Exchange Act of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware1934, as amended (the “Exchange Act”).
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions Solely with respect to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of DelawareBDC Capital Commitment, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party BDC PPM shall have been duly authorized, executed and delivered finalized by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth hereinEffective Date.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions Solely with respect to the Partnership:BDC Capital Commitment, the Form N-54A election to be treated as a business development company shall have been made with the SEC by the BDC.
(f) Solely with respect to the BDC Capital Commitment, the Articles of Amendment and Restatement, Written Consent of the Sole Director in Lieu of a Meeting of the Board of Directors, Amended and Restated Bylaws, the BDC IAA and the Master Services Agreement shall have become effective with respect to the BDC.
(g) Solely with respect to the SMA Capital Commitment, the SMA Form 10 shall have become effective in accordance with the Exchange Act.
(h) Solely with respect to the SMA Capital Commitment, the Form N-54A election to be treated as a business development company shall have been made with the SEC by the SMA.
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organizedSolely with respect to the SMA Capital Commitment, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority SMA IAA and the legal right Master Services Agreement shall have become effective with respect to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementSMA.
(iij) This Agreement and Project Loan Documents Solely with respect to which it is the SMA Capital Commitment, the Purchaser shall be admitted to the SMA as a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute Common Unitholder (as defined in the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallySMA LLC Agreement).
(iiik) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as The Purchaser shall have been duly obtained)furnished with customary legal opinions from ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or conflicts or will conflict with or result counsel to the BDC, the SMA and HoldCo, in a breach or violation of its charter documents or bylaws or any form and substance reasonably satisfactory to the Purchaser. Except as otherwise expressly permitted herein, the Form ADV, each Form 10, the BDC PPM, each Form N-54A election, the BDC Governing Documents, the BDC’s Written Consent of the terms, conditions or provisions Sole Director in Lieu of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning Meeting of the Investment Company Act Board of 1940Directors, as amendedthe BDC IAA, the Master Services Agreement and the SMA IAA shall be in substantially the forms provided to the Purchaser prior to the Effective Date.
Appears in 2 contracts
Sources: Subscription Agreement (Abu Dhabi Investment Authority), Subscription Agreement (Abu Dhabi Investment Authority)
Conditions. 3.1 The obligation sale and purchase of Cogentrix GP and Cogentrix LP the Sale Shares pursuant to make the contributions described this Agreement is in Section 3.2 are subject to all respects conditional on the satisfaction of each or waiver of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):Conditions:
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by passing of a duly convened resolution of the Management Committee and board of directors of NewLead to approve the Project Loan Documents will be executed by all parties thereto. An original executed copy arrangements described in this Agreement in the agreed form subject to the fiduciary duties from time to time of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.their directors;
(b) All conditions confirmation in writing from each of the Mortgagee Banks, (in forms acceptable to the closing of Purchaser and NewLead in all respects), that each Mortgagee Bank: (i) approves and consents to the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions arrangements described in Section 3.2 this Agreement; and (ii) agrees to a moratorium or grace period in respect of any rights the Mortgagee may have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with against the Project which are required to Companies and/or the Vessels (on such terms as may be received by the Construction/Term Lender as a condition acceptable to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.Purchaser);
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made the continuing public listing of common stock in NewLead on any national security exchange or market, trading or quotation facility up to an including the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.First Completion Date;
(d) The following representations the issuance of a satisfactory legal opinion or warranties shall due diligence report by the Purchaser's Solicitors in favour of the Purchaser (or NewLead as the case may be) in such form as may be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions acceptable to the Partnership:Purchaser;
(ie) Each the issuance of VF and VF Delaware a satisfactory financial report (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment an analysis of the Project Documents Assets, historical audited accounts for the financial years ending 31 December 2011, 31 December 2012 and Project Assets 31 December 2013 and other financial statements of the Companies and the Vendors' Group) by the Vendor's Accountants in favour of the Purchaser (or NewLead as the case may be) in such form as may be acceptable to the Partnership, requires Purchaser;
(f) the consent or authorization issuance of any other party a letter to the Purchaser and NewLead (except in such form as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any may be acceptable to the Purchaser) from each of the termsVendors, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning Companies and the directors/officers of the Investment Company Act of 1940, as amended.
Companies confirming (vamongst other things) The representations that all documentation and warranties of VF Delaware information supplied to the Purchaser (or VF or any of their respective Affiliates in or pursuant to any the Purchaser's Solicitors on behalf of the Project Documents or Project Loan Documents are true Purchaser) is true, accurate and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct complete in all respects, does not contain any misstatement of fact or omit any material fact, is not misleading and are hereby made to VF Delaware and VF has not been amended, varied or supplemented in any way on, before or after the date that such documentation or information was supplied by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:Purchaser; and
(ig) Each of Cogentrix GP all Parties (other than NewLead) having passed director and Cogentrix LP (A) is a corporation duly organized, validly existing shareholder resolutions approving this Agreement and all matters required in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of connection with this Agreement.
3.2 The Parties must use all reasonable endeavours to procure that the Conditions are satisfied as soon as practicable and in any event no later than 00:00:
(iia) This Agreement and Project Loan Documents to which it is on 31 October 2014; or
(b) where a party have later date has been duly authorizedagreed in writing between the Parties, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyon that date.
(iii) Neither 3.3 A Condition may only be waived by all Parties in writing.
3.4 If the executionConditions have not been satisfied or waived by 00:00 on 31 October 2014 this Agreement will terminate and cease to have effect immediately after that time on that date except for Clauses 19, delivery 20, 21,24, 25, 26 and any rights or performance by Cogentrix GP and Cogentrix LP of liabilities that may have accrued under this Agreement.
3.5 For the avoidance of doubt, nor compliance by it with in the terms and provisions hereof, requires the consent or authorization event of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any termination of the termsAgreement pursuant to Clause 3.4 above, conditions the Vendors shall not be entitled to make any claim whatsoever against either the Purchaser or provisions of NewLead for any Requirement of Law applicable to it compensation, indemnity, losses, damages, expenses or its assets costs whatsoever whether directly or businessindirectly incurred or whether present, future or contingent as a consequence such termination or entry into this Agreement.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement (NewLead Holdings Ltd.), Share Sale and Purchase Agreement (NewLead Holdings Ltd.)
Conditions. The 10.1 Valeura’s obligation of Cogentrix GP to purchase the CRBV Shares and Cogentrix LP to make take any other actions required to be taken by Valeura at the contributions described in Section 3.2 are Closing, whether under this Agreement, the CRBV Share Purchase Agreement or otherwise, is subject to the satisfaction satisfaction, at or prior to Closing or such earlier date as may be set forth below, of each of the following conditions precedent (except those conditions, if any, that any or all of which may be specifically waived by Valeura, in writing by Cogentrix GP whole or Cogentrix LP, as appropriatein part):
(a) The Project Credit Facilities the receipt by Valeura at Closing of:
(i) the TBNG Share Purchase Agreement executed and delivered by MMC, and all documents contemplated thereunder to be delivered by Closing;
(ii) evidence that closing is occurring concurrently under the Project Loan Documents shall TBNG Share Purchase Agreement, that all conditions set forth therein have been approved by the Management Committee satisfied (as opposed to any such conditions being waived), and the Project Loan Documents will be executed by that all parties thereto. An original representations and warranties therein are true and correct;
(iii) a fully executed copy of the PTI Share Purchase Agreement, together with evidence that closing is occurring concurrently thereunder, that all conditions set forth therein have been satisfied (as opposed to any such conditions being waived), and that all representations and warranties therein are true and correct;
(iv) fully executed copies of the ACA and each Project Loan Document will ATA;
(v) a fully executed copy of the CRBV NPI Agreement;
(vi) fully executed copies of Collection Account Agreement, together with confirmation that the security contemplated by the CRBV NPI Agreement can be delivered registered in British Virgin Islands immediately after Closing in priority to Cogentrix GP any other Person; and
(vii) fully executed copies of each of the Restated Escrow Agreement, the Gas Facilities Agreement, the Gas Marketing Agreement, the Joint Operating Agreement and a copy thereof delivered to Cogentrix LP as soon as availablethe Gaziantep Joint Operating Agreement by no later than Closing.
(b) All conditions the receipt by Valeura prior to Closing of each consent, report, document and other material or instrument required to be submitted to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries GDPA in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.obtaining GDPA Approval;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to each other Party having performed and satisfied in all material respects all of its obligations and liabilities under this Agreement, the satisfaction of Cogentrix GP TBNG Share Purchase Agreement, the PTI Share Purchase Agreement, the CRBV Share Purchase Agreement, the ACA and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.the ATAs;
(d) The following the representations or and warranties shall be of TPL and TWL herein, and of MMC in the CRBV Share Purchase Agreement, being true and correct in all respectsmaterial respects as of the Closing Date as if made on the Closing Date;
(e) Valeura being satisfied there has been no material adverse change in the Assets after the Effective Date, and are hereby nor that any material adverse information has been disclosed or otherwise made available in respect of the Assets or the transactions contemplated or described in the Agreement that was not disclosed in writing to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions Valeura prior to the Partnershipdate hereof;
(f) receipt by Valeura and VEI of relevant government, regulatory, stock exchange and third party approvals;
(g) Valeura being satisfied, acting reasonably, that the CRBV Exploration License Interests and the CRBV Production Lease Interests are beneficially owned by CRBV as at the Closing Date, in each case in accordance with this Agreement, the ACA and the applicable ATAs; and
(h) the occurrence of Closing by no later than noon (Calgary, Alberta time) on July 11, 2011. The Parties shall each use their reasonable commercial efforts to satisfy the foregoing conditions. The Parties acknowledge and agree that if any of the foregoing conditions are not either waived by Valeura or satisfied, Valeura shall upon notice to MMC, TWL and PTI Holdings be released from all of its liabilities and obligations under or in connection with this Agreement and the CRBV Share Purchase Agreement. TWL shall thereupon automatically be responsible for all such liabilities and obligations, subject to and in accordance with this Agreement, the Share Option Agreement and the TBNG Share Purchase Agreement, without any recourse to VEI or Valeura. TPL and TWL, on behalf of TransAtlantic Exploration Mediterranean International Pty. Ltd. hereby waive any right of first refusal in connection with the sale to and purchase by CRBV of the CRBV Exploration License Interests and the CRBV Production Lease Interests contemplated in the joint operating agreement dated March 25, 2010.
10.2 PTI Holdings’ obligation to purchase the PTI Shares and to take any other actions required to be taken by PTI Holdings at the Closing, whether under this Agreement, the PTI Share Purchase Agreement or otherwise, is subject to the satisfaction, at or prior to Closing or such earlier date as may be set forth below, of each of the following conditions (any or all of which may be waived by PTI Holdings, in whole or in part):
(a) the receipt by PTI Holdings at Closing of:
(i) Each of VF the TBNG Share Purchase Agreement executed and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% delivered by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this AgreementMMC, and (C) has taken all necessary action documents contemplated thereunder to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.be delivered by Closing;
(ii) This Agreement and evidence that closing is occurring concurrently under the Project Documents and Project Loan Documents to which it is a party TBNG Share Purchase Agreement, that all conditions set forth therein have been duly authorizedsatisfied (as opposed to any such conditions being waived), executed and delivered by VF Delaware that all representations and VF warranties therein are true and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.correct;
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any a fully executed copy of the Project Documents or Project Loan Documents to which it CRBV Share Purchase Agreement, together with evidence that closing is a partyoccurring concurrently thereunder, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as that all conditions set forth therein have been duly obtainedsatisfied (as opposed to any such conditions being waived), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.and that all representations and warranties therein are true and correct;
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning fully executed copies of the Investment Company Act of 1940, as amended.ACA and each ATA;
(v) The a fully executed copy of the PTI NPI Agreement;
(vi) fully executed copy of the Collection Account Agreement, together with confirmation that the security contemplated by the PTI NPI Agreement can be registered in British Virgin Islands immediately after Closing in priority to any other Person; and
(vii) fully executed copies of each of the Restated Escrow Agreement, the Gas Facilities Agreement, the Gas Marketing Agreement, the Joint Operating Agreement and the Gaziantep Joint Operating Agreement by no later than Closing.
(b) the receipt by PTI Holdings by no later than three (3) Business Days prior to Closing of each consent, report, document and other material or instrument required to be submitted to the GDPA in connection with obtaining GDPA Approval;
(c) each other Party having performed and satisfied in all material respects all of its obligations and liabilities under this Agreement, the TBNG Share Purchase Agreement, the CRBV Share Purchase Agreement, the ACA and the ATAs;
(d) the representations and warranties of VF Delaware or VF or any TPL and TWL herein, and of their respective Affiliates MMC in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LPPTI Share Purchase Agreement, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be being true and correct in all respectsmaterial respects as of the Closing Date as if made on the Closing Date;
(e) PTI Holdings being satisfied there has been no material adverse change in the Assets after the Effective Date, and are hereby nor that any material adverse information has been disclosed or otherwise made available in respect of the Assets or the transactions contemplated or described in the Agreement that was not disclosed in writing to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions PTI Holdings prior to the Partnership:date hereof;
(if) Each receipt by PTI Holdings of Cogentrix GP relevant government, regulatory, stock exchange and Cogentrix LP third party approvals;
(Ag) is a corporation duly organizedPTI Holdings being satisfied, validly existing and acting reasonably, that the PTI Production Lease Interests are beneficially owned by PTI as at the Closing Date in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in accordance with this Agreement, the ACA and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.applicable ATAs; and
(iih) This the occurrence of Closing by no later than noon (Calgary, Alberta time) on July 11, 2011. The Parties shall each use their reasonable commercial efforts to satisfy the foregoing conditions. The Parties acknowledge and agree that if any of the foregoing conditions are not either waived by PTI Holdings or satisfied, PTI Holdings shall upon notice to MMC, TWL and Valeura be released from all of its liabilities and obligations under or in connection with this Agreement and Project Loan Documents the PTI Share Purchase Agreement. TWL shall thereupon automatically be responsible for all such liabilities and obligations, subject to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms Share Option Agreement and provisions hereofthe TBNG Share Purchase Agreement, requires the consent or authorization of without any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable recourse to it or its assets or businessPTI Holdings.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Multi Party Agreement, Multi Party Agreement (Transatlantic Petroleum Ltd.)
Conditions. The obligation of Cogentrix GP and Cogentrix LP amendments provided for pursuant to make the contributions described in Section 3.2 are subject to the I hereof shall become effective only upon satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):precedent:
(a) The Project Credit Facilities and the Project Loan Documents Agent shall have been approved by received each of the Management Committee following, in form and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions substance satisfactory to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) Agent and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPits counsel.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each This Amendment and amended and restated Revolving Credit Notes executed by the Co-Borrowers in favor of VF each Bank;
(ii) a certificate of the Secretary of Compare Generiks, Inc. (the "New Guarantor") dated the date of this Amendment, attesting to all corporate action taken by such entity, including resolutions of its Board of Directors authorizing the execution, delivery and VF Delaware performance of its Guarantee and each other document to be delivered pursuant to this Agreement, together with certified copies of the certificate or articles of incorporation and the by-laws of the New Guarantor; and, such certificate shall state that the resolutions and corporate documents thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(iii) a certificate of the Secretary of the New Guarantor, dated the Closing Date, certifying the names and true signatures of the officers of such entity authorized to sign the Facility Documents and the other documents to be delivered by such entity under this Agreement;
(iv) a certificate of a duly authorized officer of each of the Co-Borrowers, dated the date of this Agreement, stating that the representations and warranties in Article 6 are true and correct on such date as though made on and as of such date and that no event has occurred and is continuing which constitutes a Default or Event of Default;
(v) a Guarantor Security Agreement duly executed by the New Guarantor, together with (A) fully completed and executed financing statements on Form UCC-1, in proper form for filing duly filed under the Uniform Commercial Code in all jurisdictions necessary or, in the reasonable discretion of the Agent, desirable to perfect the security interests to be granted hereunder and under the Guarantor Security Agreement and (B) UCC search results identifying all of the financing statements on file with respect to the New Guarantor in all jurisdictions referred to under clause (A) hereof, indicating that no party claims an interest in any of the Collateral;
(vi) a favorable opinion of counsel for the New Guarantor dated the Closing Date, in form and substance satisfactory to the Agent and its counsel;
(vii) satisfactory evidence that the New Guarantor is a limited liability company duly organized, validly existing and in good standing under the laws of the State their respective jurisdictions of Delaware, the ownership of which incorporation and each other jurisdiction where qualification is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.necessary; and
(iiviii) This Agreement such other documents, instruments, agreements, approvals, opinions and evidence as the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability Agent may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyreasonably require.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Credit Agreement (Futurebiotics Inc), Credit Agreement (PDK Labs Inc)
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of Except as expressly provided below, the following conditions precedent (except those conditionsshall automatically apply to each Transfer, if any, that may be specifically waived without the necessity of same being stated in writing by Cogentrix GP or Cogentrix LP, as appropriate):referred to in Landlord's written consent:
(a) The Project Credit Facilities Tenant shall execute, have acknowledged and deliver to Landlord, and cause the Project Loan Documents shall Transferee to execute, have been approved acknowledged and deliver to Landlord, an instrument in form and substance acceptable to Landlord in which (i) the Transferee adopts this Lease and agrees to perform, jointly and severally with Tenant, all of the obligations of Tenant hereunder, as to the space transferred to it, (ii) the Transferee grants Landlord an express first and prior security interest in its personal property brought into the transferred space to secure its obligations to Landlord hereunder, (iii) Tenant subordinates to Landlord's statutory lien and security interest any liens, security interests or other rights which Tenant may claim with respect to any property of the Transferee, (iv) Tenant agrees with Landlord that, if the rent or other consideration due by the Management Committee Transferee exceeds the Rent for the transferred space, then Tenant shall pay Landlord as additional Rent hereunder all such excess rent and the Project Loan Documents will be executed other consideration immediately upon Tenant's receipt thereof after deduction by Tenant of all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries direct costs incurred by Tenant in connection with entering into the Project which are Transfer, reasonable marketing, accounting or legal costs incurred, fees charged by Landlord for the cost of any improvements required to prepare the space for the Transferee (not to exceed Five Dollars ($5.00) per rentable square foot), and reasonable leasing commissions [not to exceed six and one-half percent (6 1/2%)]; provided, however, such deduction shall only be received by allowed against such excess rent and not against any portion of the Construction/Term Lender as Rent, (v) Tenant and the Transferee agree to provide to Landlord, at their expense, direct access from a condition public corridor in the Building to the funding of transferred space, (vi) the Construction/Term Facility Transferee agrees to use and occupy the Revolving Facility shall have been delivered or received. A copy transferred space solely for the purpose specified in Section 4 and otherwise in strict accordance with this Lease and (vii) Tenant acknowledges that, notwithstanding the Transfer, Tenant remains directly and primarily liable for the performance of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and of Tenant hereunder (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment obligation to pay all Rent), and Landlord shall be permitted to enforce this Lease against Tenant or the Transferee, or both, without prior demand upon or proceeding in any way against any other persons;
(b) Tenant may, without the consent of Landlord, Transfer this Lease, in whole or in part, to: (i) a corporation into which or with which Tenant is wholly merged or consolidated; or (ii) a corporation acquiring this Lease and all or substantially all of the Project Documents other property of Tenant and Project Assets to the Partnership, requires the consent assuming all or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any substantially all of the terms, conditions liabilities of Tenant; or provisions (iii) an entity that acquires all or substantially all of any Requirement the stock or other ownership interests in or of Law applicable to it Tenant; or its assets or business.
(iv) It is not an "investment company" or a company "controlled" Affiliate, in which case, no excess consideration will be paid by an "investment company" within Tenant to Landlord, provided that such Transferee complies with the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully conditions set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareSection 10.2(a)(i), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreementii), (iii), and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.vi); and
(iic) This Agreement and Project Loan Documents Tenant shall deliver to which it is Landlord a party have been duly authorized, counterpart of all instruments relative to the Transfer executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party all parties to such transaction (except such as have been duly obtainedLandlord), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Lease Agreement (Objectspace Inc), Lease Agreement (Objectspace Inc)
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are this Amendment is subject to the satisfaction of each of the following conditions precedent (except those conditionsor concurrent as of 2:00 p.m., if anyeastern time, that may be specifically waived in writing by Cogentrix GP or Cogentrix LPon August 1, as appropriate):2012:
(a) The Project Credit Facilities and the Project Loan Documents This Amendment shall have been approved duly executed and delivered by the Management Committee Borrower, the Administrative Agent and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availableLenders.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described The representations and warranties set forth in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing 3 hereof shall be provided to Cogentrix GP true and Cogentrix LPcorrect.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) Borrower shall have been made paid an amendment fee (the “Amendment Fee”) to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory Administrative Agent, which Amendment Fee shall be allocated to Cogentrix GP and Cogentrix LP each Lender set forth on Schedule I in an amount equal to the amount set forth opposite such Lender’s name on such Schedule. The Amendment Fee shall have been provided be paid in cash in immediately available funds, shall not be refundable under any circumstances, shall not be subject to them by VF Delawarecounterclaim setoff or otherwise affected.
(d) The following representations or warranties Borrower shall have paid an upfront fee (the “Upfront Fee”) to the Administrative Agent for the account of each Lender set forth on Schedule II in an aggregate amount equal to the amount set forth opposite such Lender’s name on such Schedule. The Upfront Fee shall be true and correct paid in all respectscash in immediately available funds, and are hereby made shall not be refundable under any circumstances, shall not be subject to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) counterclaim setoff or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a partyotherwise affected.
(iie) This Agreement All fees and expenses required to be paid on or before the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it date hereof in connection with this Amendment in accordance with their termsthat certain Fee Letter, except dated as enforceability may be limited of June 28, 2012 by general equitable principles and by applicable bankruptcybetween ▇▇▇▇▇▇▇ Lynch, insolvencyPierce, reorganization▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, moratorium or similar laws affecting Bank of America, N.A. and the rights of creditors generally.
(iii) Neither Borrower shall have been paid. In addition, the execution, delivery or performance by VF Delaware or VF of Administrative Agent shall have been reimbursed for all reasonable and documented fees and out-of-pocket charges and other expenses incurred in connection with this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofAmendment, including, without limitation, the assignment reasonable fees and disbursements of counsel for the Project Documents and Project Assets Administrative Agent, to the Partnershipextent documented prior to or on the Second Amendment Effective Date (for the avoidance of doubt, requires a summary statement of such fees, charges and disbursements shall be sufficient documentation for the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully obligations set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (CSection 4(e) has taken all necessary action to authorize the execution, delivery and performance of this Agreementprovided that supporting documentation for such summary statement is provided promptly thereafter).
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Credit Agreement (NOODLES & Co), Credit Agreement (NOODLES & Co)
Conditions. At Closing, the Companies shall deliver to the PaineWebber Parties one or more stock certificates registered in the name of PaineWebber representing the number of Purchase Shares set forth in Section 1 above. The obligation of Cogentrix GP the Companies to complete the purchase and Cogentrix LP sale of the Purchase Shares and deliver such stock certificate(s) to make the contributions described in Section 3.2 are PaineWebber Parties at the Closing shall be subject to the satisfaction following conditions, any one or more of each which may be waived by both of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
Companies acting together: (i) Each receipt by the Companies of VF and VF Delaware immediately available funds (Aor other mutually agreed upon form of payment) is a limited liability company duly organized, validly existing and in good standing under the laws full amount of the State of Delawarepurchase price specified in Section 2 for the Purchase Shares being purchased hereunder, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement the accuracy in all material respects as of the Closing Date, of the representations and warranties made by the PaineWebber Parties herein and the Project Documents and Project Loan Documents fulfillment, in all material respects, of those undertakings of the PaineWebber Parties to which it is a party have been duly authorizedbe fulfilled prior to the Closing, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, execution and delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a partyAdjustment Agreement, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or receipt by the Companies of a company "controlled" cross-receipt with respect to the Purchase Shares executed by an "investment company" within the meaning PaineWebber Agent on behalf of the Investment Company Act of 1940, as amended.
PaineWebber and (v) The receipt by the Companies of a certificate by an officer or authorized representative of PaineWebber Agent to the effect that the representations and warranties of VF Delaware or VF or any of their respective Affiliates the PaineWebber Parties set forth in or pursuant to any of the Project Documents or Project Loan Documents Section 5 hereof are true and correct as of the date hereof of this Agreement and are hereby deemed as of the Closing Date. The obligation of PaineWebber to be made accept delivery of such stock certificate(s) and to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties pay for the Purchase Shares evidenced thereby shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions subject to the Partnership:
following conditions, any one or more of which may be waived by the PaineWebber Parties: (i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organizedthe accuracy in all material respects, validly existing and in good standing under the laws as of the State Closing Date, of Delawarethe representations and warranties made by the Companies herein and the fulfillment, in all material respects, of those undertakings of the Companies to be fulfilled prior to the Closing, (Bii) has full power receipt by the PaineWebber Parties of all opinions, letters and authority certificates to be delivered by the Companies pursuant to this Purchase Agreement, (iii) execution and delivery of the legal right to incur the obligations provided for in this Adjustment Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or receipt by the PaineWebber Parties of a company "controlled" cross-receipt with respect to the purchase price for the Purchase Shares executed by an "investment company" within the meaning of the Investment Company Act of 1940, as amendedCompanies.
Appears in 2 contracts
Sources: Purchase Agreement (Wyndham International Inc), Purchase Agreement (Wyndham International Inc)
Conditions. The obligation of Cogentrix GP and Cogentrix LP If Landlord consents to make such assignment or sublease in writing, Tenant shall be entitled to assign or sublease the contributions described in Section 3.2 are Subject Space to the proposed assignee or sublessee subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities and As of the Project Loan Documents Transfer Date, Landlord shall not have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered right to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.terminate this Lease because Tenant is in default under this Lease;
(b) All conditions to the closing of the Construction/Term Facility shall have occurred The assignment or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing sublease shall be provided on the same terms and conditions set forth in the Transfer Notice given to Cogentrix GP and Cogentrix LP.Landlord;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) No assignment or sublease shall have be valid and no assignee or sublessee shall take possession of the Premises or any portion thereof until an executed counterpart of the assignment or sublease has been made delivered to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.Landlord;
(d) The following representations or warranties No sublessee shall be true and correct in all respects, and are hereby made have a right further to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.sublease;
(e) The following representations or warranties Any proposed sublease would not result in more than two subleases of portions of the Premises being in effect at any one time during the Term;
(f) Any assignee shall have assumed in writing the obligations of Tenant under this Lease;
(g) Any subtenant shall have agreed in writing to comply with all terms and provisions of this Lease applicable to the Subject Space except rent which shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations amount provided for in this Agreementthe sublease; and
(h) Fifty percent (50%) of any sums or other economic consideration received by Tenant as a result of such assignment or subletting (less reasonable, BONA FIDE finders' fees or leasing commissions payable to a third party in connection with such assignment or subletting, and less reasonable attorneys' fees and costs paid in connection with such assignment or sublease) whether denominated rent or otherwise, which exceed, in the aggregate, the Monthly Base Rent and additional rent which Tenant is obligated to pay Landlord under this Lease (Cprorated as to any sublease to reflect obligations allocable to that portion of the Premises subject to such sublease) has taken all necessary action shall be payable to authorize the executionLandlord as additional rent under this Lease, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium without affecting or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of reducing any other party (except obligation of Tenant hereunder. At Landlord's request, Tenant shall deliver to Landlord such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any evidence of the termssums or other economic consideration received by ▇▇▇▇▇▇ as a result of assignment or sublease, conditions and the amounts deducted therefrom for proposes of calculating Landlord's share of such sums or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940other economic consideration, as amendedLandlord shall require from time to time.
Appears in 2 contracts
Sources: Office Lease (Interwave Communications International LTD), Office Lease (Interwave Communications International LTD)
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each Each Incremental Facility shall become effective, as of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):applicable Incremental Effective Date; provided that:
(a) The Project Credit Facilities before and after giving effect to such Incremental Facility (and, if such Incremental Facility is being established in whole or in part on clause (2) of the definition of “Incremental Cap,” assuming the full amount of such Incremental Facility is drawn), each of the conditions set forth in Section 7.2 [Each Additional Loan or Letter of Credit] shall be satisfied;
(b) before and after giving effect to such Incremental Facility (and, if such Incremental Facility is being established in whole or in part on clause (2) of the definition of “Incremental Cap,” assuming the full amount of such Incremental Facility is drawn), no Potential Default or Event of Default has occurred and is continuing;
(c) the Loan Parties shall deliver to each Agent on or before the effective date of such Incremental Facility the following documents in a form reasonably acceptable to each applicable Administrative Agent and the Project Loan Documents shall have Collateral Agent: (1) certifications of their corporate secretaries with attached resolutions certifying that the Incremental Facility has been approved by the Management Committee Loan Parties, (2) opinions of counsel, addressed to each Administrative Agent and the Project Lenders addressing the authorization, execution and enforceability of the Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received such Incremental Facility, and (3) if requested by the Construction/Term Lender as a condition Collateral Agent, amendments to the funding Mortgages executed and delivered by the applicable Loan Parties to the Collateral Agent for the benefit of the Construction/Term Facility Secured Parties to reflect the Incremental Facility, in form and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof substance reasonably satisfactory to Cogentrix GP the Collateral Agent, together with (A) the Required Flood Materials and Cogentrix LP (B) local counsel opinions regarding the due authorization, execution, delivery, and enforceability of such mortgage amendments. The Loan Parties shall have been provided cause the amendments described in clause (3) above to them by VF Delaware.be properly recorded and/or filed in the applicable filing or recording offices; and
(d) The following representations or warranties the Borrower shall be true and correct in all respects, and are hereby made deliver to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is each Agent a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct certificate dated as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully Incremental Effective Date signed by an Authorized Officer of the Borrower (1) certifying that the conditions set forth herein.
in clauses (ea) The following representations or warranties shall be true and correct in all respects, (b) above are satisfied and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i2) Each of Cogentrix GP and Cogentrix LP if clause (A2) is a corporation duly organized, validly existing and in good standing under the laws of the State definition of Delaware“Incremental Cap” is being utilized, (B) has full power and authority and the legal right to incur the obligations provided for setting forth calculations in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreementreasonable detail showing compliance with such clause.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Credit Agreement (CONSOL Energy Inc.), Credit Agreement (CONSOL Energy Inc.)
Conditions. The Buyer’s obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are close under this Agreement is subject to the satisfaction of each all of the following conditions precedent (except those conditions, if any, that any one of which may be specifically waived in writing whole or in part by Cogentrix GP Buyer by notice given in accordance with Article 19) at or Cogentrix LPprior to Closing), as appropriate):which conditions shall be applied to each of the Closings and the particular Projects included therein:
(ai) The Project Credit Facilities and the Project Loan Documents Seller shall have been approved by the Management Committee performed and the Project Loan Documents will be executed by satisfied each and all parties of Seller’s obligations under this Agreement with respect thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(bii) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) Each and all governmental consents, approvals, permits of Seller’s representations and licenses and other deliveries warranties set forth in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties this Agreement shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to material respects at the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority Effective Date and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyClosing Date.
(iii) Neither Seller shall have delivered to Buyer the executionTenant Estoppel Certificates from (i) any Tenant that leases 15,000 or more of the rentable square footage in any one Building (collectively, delivery the “Major Tenants”); and (ii) such other Tenants who, together with the Major Tenants, lease at least eighty-five percent (85%) of the leased rentable square feet of the Projects in the aggregate for each Tranche. Each tenant estoppel certificate shall be in the form required by such Tenant’s Lease or substantially in the form attached hereto as Exhibit F (each, a “Tenant Estoppel Certificate”). Any qualification of any assertion in the Tenant Estoppel Certificate regarding the status of the performance by VF Delaware or VF of this Agreement or any of landlord’s obligations under a Lease that such assertion is made “to Tenant’s knowledge” or similar qualification made by a Tenant shall be acceptable. A standard Statement of Lease from any GSA Tenant shall be deemed acceptable in lieu of a Tenant Estoppel Certificate. Any Lease that terminates or expires within thirty (30) days after the Closing Date shall not be included in the calculation of the required Tenant Estoppel Certificates, and Seller shall not be required to deliver a Tenant Estoppel Certificate from such Tenants.
(iv) Title Insurer shall be prepared, and irrevocably committed, to issue an ALTA Owners Title Insurance Policy for each Project, to be dated effective no earlier than the Closing Date, that (i) is in the form customarily used for similar transactions in state in which the Project Documents is located, (ii) is in at least the face amount of the Purchase Price allocated to such Project, (iii) shows fee title to the Project to be vested of record in Buyer (or Project Loan Documents a SPE owned in its entirety by the Buyer or a DHSPE), and (iv) provides for no title exceptions other than the Permitted Exceptions.
(v) Following the Effective Date, no Major Tenant has commenced a voluntary case or been the subject of a petition for involuntary bankruptcy under the United States Bankruptcy Code (Title 11 of the United States Code).
(vi) The rights of third parties to which it is a party, nor compliance by it with the terms and provisions hereof purchase one or thereofmore Projects shall have been waived, including, without limitation, the assignment right of purchase listed on Exhibit O attached hereto. If any purchase right is exercised by a third party, this Agreement shall terminate as to such Project or Projects and this Agreement shall otherwise continue in full force and effect, and upon such termination Buyer will receive a refund of the ▇▇▇▇▇▇▇ Money allocable to such Project Documents or Projects from Escrow Agent and Project Assets the parties shall have no further rights or obligations hereunder with respect to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtainedapplicable Project(s), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessexcept for those which expressly survive such termination.
(ivvii) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning With respect to each of the Investment Company Act of 1940Tranche 2 Closing and the Tranche 3 Closing, as amendedthe condition more fully described on Exhibit P attached hereto (the “Capital Contingency”).
(vviii) The representations and warranties satisfaction of VF Delaware or VF the conditions precedent set forth in Exhibit Q attached hereto (the “Additional Buyer Conditions”). Upon learning of a failure of a condition in this Article 8, or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for other condition in this Agreement, Buyer shall promptly notify Seller thereof, and Seller shall have thirty (C30) has taken all necessary action days to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained)cure said failure, or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any the event that the failure of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is condition cannot an "investment company" or a company "controlled" by an "investment company" be cured within the meaning of the Investment Company Act of 1940, as amended.thirty
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Cb Richard Ellis Realty Trust)
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make any other conditions set forth herein or required by Lender, the contributions described in Section 3.2 following are subject conditions precedent that must be satisfied prior to the satisfaction of each closing of the following conditions precedent Transfer and Assumption (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriatethe “Closing”):
(a) The Project Credit Facilities execution, acknowledgment, delivery and recordation of this Agreement by all of the parties concurrently with the Closing, and the Project execution, acknowledgement and delivery of all other agreements, instruments and documents required by Lender hereunder concurrently with and in connection with the Closing, including but not limited to the following (collectively, the “Supplemental Loan Documents shall have been approved by Documents”): (i) a new Guaranty Agreement from Buyer Principal in substantially the same form as the Guaranty (the “New Guaranty”) (ii) a new Environmental Indemnity Agreement in substantially the same form as the Environmental Indemnity from Buyer and Buyer Principal (the “New Environmental Indemnity”) (iii) a new Assignment of Management Committee Agreement and Subordination of Management Fees from Inland National Real Estate Services, LLC, a Delaware limited liability company (the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP “Manager”), Lender and Buyer in substantially the same form as the Assignment (the “New Assignment”), and (iv) a copy thereof delivered to Cogentrix LP new Joinder Agreement from Buyer Principal in substantially the same form as soon as availablethe Joinder (the “New Joinder”).
(b) All conditions The execution, delivery and recordation or filing, as applicable, of one more new financing statements, or amendments to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are existing financing statements as required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPat Closing.
(c) The contribution Buyer’s delivery to Lender of satisfactory evidence that all insurance over the Property required by VF Delaware contemplated by Section 3.1(athe Loan Documents (the “Required Insurance”) shall have been made to is in full force and effect as of the satisfaction of Cogentrix GP Closing, with all required premiums paid, and Cogentrix LP and evidence thereof reasonably contains a mortgagee’s clause (the “Mortgagee’s Clause”) satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF DelawareLender in favor of Lender, its successors and/or assigns, c/o Midland Loan Services, Master Servicer, 10851 ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇; re: Loan Number 030286910.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
Lender’s receipt of satisfactory Title Endorsements (i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VFhereinafter defined), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations full release and reconveyance of any other liens or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to monetary encumbrances against the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementProperty.
(iif) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute Lender’s receipt of all of the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyRequired Payments (hereinafter defined).
(iiig) Neither The satisfaction of all other conditions contained in the execution, delivery or performance approval letter issued by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it the Lender in connection with the terms Transfer and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessAssumption.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Consent and Assumption Agreement, Consent and Assumption Agreement (Inland Real Estate Income Trust, Inc.)
Conditions. The obligation effectiveness of Cogentrix GP this Loan Modification Agreement is conditioned upon Lender’s receipt, in form and Cogentrix LP substance satisfactory to make the contributions described in Section 3.2 are subject to the satisfaction of each Lender, of the following conditions precedent (except those conditions, if any, that may be specifically waived following:
A. payment in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing full of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF Loan Fee and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This fees and expenses of Lender’s counsel incurred through the date of this Loan Modification Agreement;
B. a Formula Revolving Promissory Note of even date herewith in the maximum principal amount of One Million Six Hundred Thousand Dollars ($1,600,000) from Borrower in favor of Lender;
C. a Non-Formula Revolving Promissory Note of even date herewith in the maximum principal amount of Nine Hundred Thousand Dollars ($900,000) from Borrower in favor of Lender;
D. a Warrant to Purchase Stock, issued by Borrower in favor of Lender (the “Borrower Warrant”), permitting Lender to purchase 300,000 shares of Borrower’s Series A Preferred Stock, at an exercise price of $2.50 per share, providing for an increase of 150,000 shares in the number of shares exercisable under the Borrower Warrant for each month or portion thereof that any Advances remain outstanding beyond the Revolving Maturity Date and containing such other terms as shall be acceptable to Lender;
E. an agreement from Merger Parent, agreeing to issue in favor of Lender, simultaneously with the consummation of the Merger, a Warrant to Purchase Stock (the “Merger Parent Warrant”), permitting Lender to purchase 137,500 shares of Merger Parent’s Series A Participating Preferred Stock (the “Shares”) at an exercise price of $1.00 per share, providing for an increase of 68,750 shares in the number of Shares exercisable under the Merger Parent Warrant for each month or portion thereof that any Advances remain outstanding beyond the Revolving Maturity Date, and otherwise being on terms and conditions comparable to the Borrower Warrant;
F. a certificate from an officer of Borrower certifying that the Information Statement has been submitted to the SEC;
G. a reaffirmation, in form and substance satisfactory to Lender, of the Guaranty, Foreign Security Agreement, Foreign Pledge Agreement and the Project Documents and Project or other Existing Loan Documents to which it is a party have been duly authorized, Document previously executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance or with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant respect to any of the Project Documents or Project Loan Documents are true Borrower’s Subsidiaries;
H. a lien release letter, in form and correct substance satisfactory to Lender, from Warburg Pincus; and
I. such other instruments, documents and agreements as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it Lender or its assets or businesscounsel may require.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 2 contracts
Sources: Loan Modification Agreement, Loan Modification Agreement (Viewlocity Inc)
Conditions. The obligation agreement of Cogentrix GP and Cogentrix LP to make the contributions described Lender contained in Section 3.2 are Clause 3 (Agreement of the Lender) shall be expressly subject to the satisfaction condition that the Lender shall have received on or before the Effective Date in form and substance satisfactory to the Lender and its legal advisers:
a. a duly certified true copy of the Articles of Incorporation and/or of any other constitutional documents, as the case may be, of the New Corporate Guarantor and of any corporate shareholder thereof;
b. a statement to the Lender confirming the identity of the Beneficial Shareholder(s) of the New Corporate Guarantor in line with “know your customer” procedures of the Lender for opening account purposes, who should be acceptable in all respects to the Lender;
c. a certificate of good standing or equivalent document issued by the competent authorities of the place of its incorporation in respect of the New Corporate Guarantor;
d. a certificate of good standing or equivalent document issued by the competent authorities of the place of its incorporation in respect of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing Borrowers and the other corporate Security Parties;
e. a recent certificate of incumbency of each corporate Security Party issued by Cogentrix GP or Cogentrix LPthe appropriate authority or, as appropriate):
(a) The Project Credit Facilities , signed by the secretary or a director thereof, stating the officers and the Project Loan Documents shall have been approved directors of each of them;
f. certified and duly legalised copies of resolutions duly passed by the Management Committee Board of Directors, or the Sole Director as the case may be, of each of the Borrowers and the Project Loan other Security Parties and certified and duly legalised copies of the resolutions passed at a meeting of the shareholders of each of the Borrowers evidencing approval of this Supplemental Agreement and each of the New Transaction Documents will to which the relevant Security Party is or is to be a party and authorising appropriate officers or attorneys to execute the same and to sign all notices required to be given under this Supplemental Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
g. all documents evidencing any other necessary action or approvals or consents with respect to this Supplemental Agreement evidencing approval of this Supplemental Agreement and each of the New Transaction Documents and authorising appropriate officers or attorneys to execute the same and to sign all notices required to be given under this Supplemental Agreement on its behalf or other evidence of such approvals and authorisations as shall be acceptable to the Lender;
h. the original of any power(s) of attorney issued in favour of any person executing this Supplemental Agreement and each of the New Transaction Documents;
i. any and all documents evidencing the transfer of the entire stock of the Borrowers from the Existing Corporate Guarantor to the New Corporate Guarantor and any other evidence that each of the Borrowers is a fully owned Subsidiary of the New Corporate Guarantor;
j. all documents evidencing any other necessary action or approvals or consents with respect to this Supplemental Agreement and the New Transaction Documents;
k. such favourable legal opinions from lawyers acceptable to the Lender and its legal advisors in this Supplemental Agreement and the New Transaction Documents as the Lender shall require;
l. the New Transaction Documents duly executed by all the respective parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.; and
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than m. evidence that the capital contributions described fees referred to in Section 3.2 Clause 9.1 (Arrangement fee) have been made) and all governmental consents, approvals, permits and licenses and other deliveries paid in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPfull.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP This Amendment Agreement shall become effective upon the Borrower delivering to make the contributions described Administrative Agent the following; provided, however, upon such delivery, the amendment set forth in Section 3.2 are subject to 2(r) hereof shall be deemed effective as of September 30, 2004:
(a) ten (10) counterparts of this Amendment Agreement duly executed by the satisfaction Administrative Agent, the Lenders, the Borrower and the Subsidiary Guarantors;
(b) a certificate of the secretary or an assistant secretary of each of the following conditions precedent (except those conditionsBorrower and each Subsidiary Guarantor, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities form and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions substance satisfactory to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consentsAdministrative Agent, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
certifying (i) Each that the articles or certificate of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws incorporation or articles or certificate of organization of the State of DelawareBorrower or such Subsidiary Guarantor, the ownership of which is 99% by Agro Power and 1% by VF (in as the case may be, have not been amended since such articles or certificate were delivered on the Effective Date or attaching any amendments thereto since the Effective Date, as each may be certified as of VF Delawarea recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, (ii) that the bylaws, operating agreement, partnership agreement or 1% by VF Delaware (in other comparable document of the Borrower or such Subsidiary Guarantor, as the case may be, have not been amended since such bylaws, operating agreement, partnership agreement or other comparable document was delivered on the Effective Date, and that such document has been in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreementsuch certificate, and (Ciii) has taken all necessary action to authorize that attached thereto is a true and complete copy of resolutions adopted by the board of directors, managers, general partners or other comparable governing body of the Borrower or such Subsidiary Guarantor, as the case may be, authorizing the execution, delivery and performance of this Amendment Agreement and the Project Documents amendments contemplated herein, and Project Loan Documents as to which it is a party.the incumbency and genuineness of the signature of each officer of the Borrower or such Subsidiary Guarantor, as the case may be, executing this Amendment Agreement, and attaching all such copies of the documents described above;
(iic) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium amendments or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets modifications to the Partnershipexisting Mortgages, requires in form and substance reasonably satisfactory to the consent or authorization of any other party (except such as have been duly obtained)Administrative Agent, or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct dated as of the date hereof and are hereby deemed to be made to Cogentrix GP duly executed by the Borrower, a Subsidiary Guarantor and Cogentrix LP, mutatis mutandisthe trustee thereunder, as if fully set forth herein.applicable, together in each case with the Mortgaged Property Support Documents and any additional title policy endorsements required by the Administrative Agent in its reasonable discretion;
(d) all fees and expenses payable by the Borrower by reason of this Amendment Agreement;
(e) The following representations such other documentation, instruments, consents and agreements as the Administrative Agent shall reasonably request including those described in paragraph 8 of this Amendment Agreement;
(f) amended and restated or warranties replacement Revolving Notes for each Revolving Lender whose Revolving Credit Commitment is increasing as a result of this Amendment Agreement and amended and restated or replacement Term Loan A Notes reflecting the re-advance of a portion of the Term Loan A pursuant to this Amendment Agreement; and
(g) irrevocable notice shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions have been given to the Partnership:
(i) Each Administrative Agent that the Term Loan B will be prepaid in full on or about the Amendment No. 1 Effective Date but in any event not later than the third Business Day following the Amendment No. 1 Effective Date, with proceeds of Cogentrix GP the Amendment No. 1 Advance and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing $9,010,000 drawn under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementRevolving Credit Facility.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation This Amendment (other than Section 9 below, which is effective immediately upon this Amendment’s execution and delivery) will be effective as of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the Second Amendment Date upon satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities Administrative Agent’s receipt of an original, facsimile or portable document format (PDF) copy (followed promptly by originals) of the following, each dated the Second Amendment Date (or, in the case of certificates of governmental officials, a recent date before the date of the Amendment) and each in form and substance satisfactory to Administrative Agent and its legal counsel:
(i) this Amendment, properly executed and delivered by the Borrowers and the Project Lenders;
(ii) Ratifications of and Amendments to the Existing Guarantees in favor of the Administrative Agent, properly executed and delivered by the Guarantors;
(iii) Ratifications of and Amendments to the Security Instruments in favor of the Administrative Agent, properly executed and delivered by the appropriate Credit Parties;
(iv) certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Credit Party as the Administrative Agent requires evidencing the identity, authority and capacity of each officer thereof authorized to act as an Authorized Officer in connection with this Amendment and the other Loan Documents shall have been approved to which such Credit Party is a party; and
(v) any other document or instruments requested by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availableAdministrative Agent.
(b) All conditions if required by the Administrative Agent, the Borrowers’ payment of all fees due to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries Lenders in connection with this Amendment and all reasonable fees, expenses and disbursements of any law firm or other external counsel for Administrative Agent to the Project which are required extent invoiced, plus counsel’s reasonable estimate of additional fees, expenses and disbursements to be received incurred by it through and after closing of this Amendment (provided that any estimate will preclude a final settling of accounts between the Construction/Term Lender Borrowers and Administrative Agent). The Administrative Agent’s election to not require Borrowers to pay all such fees and expenses as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance effectiveness of this Agreement and Amendment will not excuse Borrower’s obligation to do so promptly upon the Project Documents and Project Loan Documents to which it is a partyAdministrative’ Agent’s demand.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Credit Agreement (Matrix Service Co)
Conditions. The obligation obligations of Cogentrix GP BHP Billiton Limited to declare the Ltd Dividend and Cogentrix LP BHP Billiton Plc to make declare the contributions described in Section 3.2 Plc Dividend under this deed are subject to the satisfaction of each or waiver of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):Conditions:
(a) The Project Credit Facilities the Demerger being approved at the Ltd General Meeting and the Project Loan Documents shall have been approved Plc General Meeting by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Requisite Majority;
(b) All no temporary restraining order, preliminary or permanent injunction or other order being issued by any court of competent jurisdiction and no other legal restraint or prohibition preventing the Demerger being implemented;
(c) all Regulatory Approvals being obtained either unconditionally or on conditions reasonably satisfactory to BHP Billiton;
(d) the ASX approving the admission of South32 to the closing ASX official list and the granting of permission for official quotation of South32 Shares on ASX, subject only to such conditions that are acceptable to BHP Billiton Limited and BHP Billiton Plc;
(e) an application having been made to the UKLA for all of the Construction/Term Facility shall have occurred South32 Shares to be admitted to the standard listing segment of the UKLA official list and to the LSE for the South32 Shares to be admitted to trading on the LSE’s main market for listed securities and there having been no indication that such applications will not be granted on or been satisfied before 26 May 2015 (other than evidence London Time) (or such later time determined by BHP Billiton) on such conditions that are acceptable to BHP Billiton;
(f) the capital contributions described in Section 3.2 have been madeJSE approving the secondary listing of South32 on the JSE, subject only to such conditions that are acceptable to BHP Billiton Limited and BHP Billiton Plc;
(g) and all governmental consents, approvals, permits and licenses and other deliveries in connection with completion of the Project transactions which are required to be received by the Construction/Term Lender as a condition give effect to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it Internal Restructure in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.Internal Restructure Documents; and
(iiih) Neither no event occurring prior to the execution, delivery or performance by VF Delaware or VF of this Agreement or any declaration of the Project Documents or Project Loan Documents to Ltd Dividend and the Plc Dividend which it is a party, nor compliance by it with would render the terms and provisions hereof or thereof, including, without limitationpayment of such dividends unlawful. For the avoidance of doubt, the assignment of Demerger will not be implemented unless BHP Billiton Limited declares the Project Documents Ltd Dividend and Project Assets to BHP Billiton Plc declares the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessPlc Dividend.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are this Amendment is subject to the satisfaction of each of the following conditions precedent (except those conditionssuch date on which such conditions are satisfied being the “Effective Date”), if any, that may be unless specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):Agent and Lenders.
(a) The Project Credit Facilities and the Project Loan Documents Agent shall have been approved received all of the following documents, each document (unless otherwise indicated) being dated the date hereof, duly authorized, executed and delivered by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP , and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) form and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof substance reasonably satisfactory to Cogentrix GP Agent and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the PartnershipLenders:
(i) Each this Amendment;
(ii) that certain First Amendment to Pledge and Security Agreement dated as of VF June ___, 2007 between Borrower and VF Delaware Agent.
(Aiii) is a limited liability company duly organized, validly existing and in good standing under the laws certified copy of the State resolutions of Delaware, the ownership Directors of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize Borrower authorizing the execution, delivery and performance of this Agreement Amendment and the Project Documents any and Project all other Loan Documents to which it is executed by the Borrower in connection therewith, along with a party.
(ii) This Agreement and certificate of incumbency certified by the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any secretary of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it Borrower with the terms and provisions hereof or thereof, including, without limitation, the assignment specimen signatures of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any officers of the terms, conditions or provisions Borrower who are authorized to sign such documents (such certificates of any Requirement incumbency to be bring down certificates of Law applicable to it or its assets or business.incumbency for Borrower);
(iv) It is not that certain Reaffirmation of Loan Documents, dated as of June ___, 2007 among Borrower, Agent and Lenders;
(v) an "investment company" executed copy of (i) the First Amendment to Preferred Fleet Mortgage, Covering the Vessel SUPERIOR ENDEAVOR, Official Number 1646 and (ii) the First Amendment to Preferred Fleet Mortgage, Covering the Vessels GULF DIVER III, Official Number 576020, GULF DIVER IV, Official Number 553457, GULF DIVER V, Official Number 555837 and GULF DIVER VI, Official Number 589812;
(vi) such additional documents, instruments and information as Agent or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amendedLenders or their legal counsel may reasonably request.
(vb) Agent shall have received a closing fee in the amount of $45,000, which shall be fully earned, nonrefundable and payable on the Effective Date.
(c) The representations and warranties of VF Delaware or VF or any of their respective Affiliates contained in or pursuant to any of the Project Documents or Project Credit Agreement and/or in the other Loan Documents are in each case, as Modified (hereinafter defined) hereby and as contained herein shall be true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, Effective Date as if fully set forth hereinmade on such date, except to the extent such representations and warranties (i) relate to any matter with respect to which written notice has been given to Agent and/or Lenders by Loan Parties pursuant to and in accordance with the Credit Agreement or (ii) which by their terms expressly speak as of an earlier date;
(d) No Default or Event of Default shall have occurred and be continuing.
(e) The following representations or warranties All corporate proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be true reasonably satisfactory to Agent, Lenders and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreementcounsel.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Credit Agreement (Superior Offshore International Inc.)
Conditions. The obligation This Amendment shall become effective on the date (the "AMENDMENT EFFECTIVE DATE") as of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of which each of the following conditions precedent (except those conditions, if any, that may be specifically waived shall have been satisfied in writing by Cogentrix GP or Cogentrix LP, as appropriate):a manner satisfactory to the Bank:
(a) The Project Credit Facilities and the Project Loan Documents Bank shall have been approved received the following documents, each in form and substance satisfactory to the Bank:
(i) this Amendment, duly executed by the Management Committee Borrowers;
(ii) the Fourth Amended and Restated Revolving A Note, dated the Project Loan Documents will Amendment Effective Date, in substantially the form attached hereto as ANNEX B, made by the Borrowers to the order of the Bank and in the original principal amount of $65,000,000 (the "NEW NOTE"); and
(iii) Federal Reserve Form U-1 provided for in Regulation U issued by the Board of Governors of the Federal Reserve System, the statements made in which shall be such, in the opinion of the Bank, as to permit the transactions contemplated hereby in accordance with such Regulation;
(iv) UCC Financing Statement Amendment, amending Schedule A to UCC-1 Financing Statement to reflect the pledge by the Pledgor of the Additional Collateral;
(v) certified copies of requests for copies or information on Form UCC-11 or other recent UCC search results, listing all effective financing statements which name a Borrower as debtor, together with search results with respect to judgment and tax liens searches and copies of such financing statements and any other lien, none of which, except as otherwise agreed to in writing by the Bank, shall cover any of the Collateral;
(vi) the original stock certificates representing 100% of the Pledged Shares that are not subject to the BA Control Agreement and 15 undated stock powers executed in blank and other proper instruments of transfer for the stock certificates pledged by the Pledgor to the Bank;
(vii) an issuer's letter from Triarc with respect to the pledge of the Pledged Shares by the Pledgor;
(viii) an irrevocable letter, duly executed by the Pledgor, authorizing the payment of all parties thereto. An original executed dividends payable on the Pledged Shares directly to the Bank without further consent from the Pledgor;
(ix) a certified copy of each Project Loan Document will be delivered Registration Rights Agreement, if any, together with any consent from Triarc that the Bank may reasonably require in order to Cogentrix GP enjoy the benefits of any Registration Rights Agreement in respect of the Pledged Shares;
(x) a restricted securities statement, duly executed by the Pledgor;
(xi) an opinion, dated the Amendment Effective Date, of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Borrowers, ▇▇ form and a copy thereof delivered substanc▇ ▇▇▇▇▇nab▇▇ ▇▇▇▇▇factory to Cogentrix LP the Bank and its counsel;
(xii) the BA Control Agreement, duly executed by the Securities Intermediary, the Bank and the Pledgor; and
(xiii) such other agreements, instruments, opinions and other documents as soon as availablethe Bank may reasonably request.
(b) All conditions The Bank shall have received all fees and other amounts due and payable to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofBank, including, without limitation, the assignment Commitment Fee referred to in Section 4 hereof and all legal fees, costs and expenses of the Project Documents Bank in connection with the Credit Agreement, this Amendment and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessrelated agreements and documents.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(vi) The representations and warranties by each Borrower contained in this Section 5 of VF Delaware or VF or any of their respective Affiliates this Amendment and in or pursuant to any Article IV of the Project Documents Credit Agreement, as amended hereby, and of each Loan Party in each other Loan Document and certificate or Project Loan Documents other writing delivered to the Bank pursuant hereto or thereto on or prior to the date hereof are true and correct in all material respects on and as of such date as though made on and as of such date, except to the extent that any such representation and warranty expressly relates solely to an earlier date hereof (in which case such representation and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties warranty shall be true and correct in all respects, on and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
such earlier date); (ii) This Agreement no Event of Default or Default has occurred and Project Loan Documents to which it is a party have been duly authorizedcontinuing or would result from the effectiveness of this Amendment; and (iii) since the date of the Credit Agreement, executed no material adverse change in the operations, condition (financial or otherwise), business, assets, income or prospects of such Borrower has occurred and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their termsis continuing, except as enforceability may be limited previously disclosed in writing to the Bank and consented to in writing by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyBank.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Pledge and Security Agreement (Triarc Companies Inc)
Conditions. The obligation Notwithstanding the foregoing, a Shareholder will not be required to comply with Section 11.1 or ARTICLE XII in connection with any proposed Drag-Along Sale (regardless of Cogentrix GP whether at the time of such Drag-Along Sale Wal-Mart and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each its Affiliates collectively hold at least eighty-five percent (85%) of the following conditions precedent (except those conditionsOutstanding Shares), if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):unless: 35
(a) The Project Credit Facilities and the Project Loan Documents if such Shareholder is a Minority Shareholder, such Shareholder shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered opportunity to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
sell one hundred percent (b100%) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) Shares and all governmental consents, approvals, permits and licenses and other deliveries Equity Securities held by such Shareholder in connection with the Project which are required Drag-Along Sale; (b) any representations and warranties to be made by such Shareholder in connection with the Drag-Along Sale shall be limited to the representations and warranties set forth in Section 12.1; (c) such Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Shareholder in connection with the Drag-Along Sale (other than representations and warranties relating to the Fit Group, including its business, operations, results of operations, assets and liabilities) and, in the event such Shareholder is held liable for indemnification in the Drag-Along Sale for the inaccuracy of any representations and warranties relating to the Fit Group, such Shareholder’s liability (i) is several and not joint with any other Shareholder (except to the extent that funds may be paid out of an escrow or holdback established to partially or wholly secure any indemnification obligations of the Shareholders in connection with such Drag-Along Sale), and is pro rata in proportion to the amount of consideration to be paid to such Shareholder in connection with the Drag-Along Sale (as compared to the amount of consideration to be paid to all Shareholders in connection therewith) and (ii) does not exceed the amount of consideration to be paid to such Shareholder in connection with such Drag-Along Sale (except in the case of fraud by such Shareholder); (d) upon the consummation of the Drag-Along Sale, such Shareholder will receive the same form and amount of consideration per Share as is received by other Shareholders in respect of their Shares; provided, however, that, notwithstanding the foregoing, if the consideration to be paid in exchange for such Shareholder’s Equity Securities in a Drag-Along Sale includes any securities and due receipt thereof by such Shareholder would require under applicable Law either (i) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (ii) the provision to any Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to Accredited Investors, then the consideration to be received by such Shareholder in the Construction/Term Lender Drag-Along Sale may include, in lieu of such securities, an amount in cash equal to the fair value of the securities that such Shareholder would otherwise receive in the Drag-Along Sale (as determined in good faith by the Board) in exchange for such Shareholder’s Equity Securities; (e) if any Shareholders are given an option as to the form and amount of consideration to be received as a condition result of the Drag-Along Sale with respect to a particular class or series of Shares (other than an offer to members of management of the Fit Group Companies to roll-over their Equity Securities), such Shareholder will be given the same option with respect to the funding same class or series of the Construction/Term Facility and the Revolving Facility Shares held by such Shareholder; provided, however, that nothing in this clause “(e)” shall have been delivered entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made limitation that is generally applicable to the satisfaction other Shareholders; (f) no non-competition obligations are imposed on the Shareholder or its Affiliates, except if such Shareholder is the Founder or an officer or employee of Cogentrix GP any Fit Group Company; and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(dg) The following representations no non-solicitation obligations are imposed on the Shareholder or warranties shall be true and correct in all respectsits Affiliates, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
except (i) Each of VF and VF Delaware (A) if such Shareholder is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) Founder or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium an officer or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization employee of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.Fit Group 36
Appears in 1 contract
Sources: Share Issuance and Acquisition Agreement (Walmart Inc.)
Conditions. The obligation Notwithstanding any other provision of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject this Agreement to the satisfaction contrary, the County Board shall have no obligation to disburse any of each the Federal CDBG Loan funds to the Borrower unless and until all of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):collectively the “Funding Conditions”) have been satisfied:
(a1) The Project Credit Facilities and the Project Loan Documents Borrower shall have been approved by provided the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original County Attorney with an executed copy of each the Agreement of Purchase and Sale between the Borrower and the Shell Site Seller; and
(2) Borrower shall have provided the County Attorney with an executed copy of the Agreement of Purchase and Sale between the Borrower and the ▇▇▇▇▇▇ ▇▇▇▇ Site Seller; and
(3) Borrower shall have applied for all required permits and discretionary land use entitlements necessary to allow the Borrower to demolish the Columbia Pike Food Mart and Shell Gas Station located on the Shell Site Property; and
(4) Borrower shall have provided the County Manager with written confirmation that the Borrower has secured a commitment for additional financing, if required, to cover the full costs of the CDBG-Eligible Project Loan Document will be delivered to Cogentrix GP and Activities; and
(5) Borrower shall have provided the County Attorney with a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions of ▇▇▇▇▇▇▇▇’s organizational documents satisfactory to the closing of County Attorney documenting the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority of Borrower to enter into and the legal right to incur the perform its obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of under this Agreement and the Project Documents and Project CDBG Loan Documents Documents; provided, that the Borrower’s possession of title to which it is a party.the ▇▇▇▇▇▇ ▇▇▇▇ Property need not be precedent for disbursement of the Federal CDBG Loan funds; and
(ii6) This Borrower shall have provided the County Attorney with a copy of a resolution or other corporate document satisfactory to the County Attorney authorizing ▇▇▇▇▇▇▇▇’s authority to acquire and own the Required Project Property and construct and operate The Shell Site Project and to execute this Agreement and the Project Documents and Project CDBG Loan Documents to which it is a party Documents; and
(7) Borrower shall have been duly authorized, executed and delivered by VF Delaware to the County Attorney all documents, instruments, and VF and constitute policies required under the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.CDBG Loan Documents; and
(iii) Neither 8) Borrower shall have provided to the execution, delivery or performance by VF Delaware or VF County Attorney evidence of the insurance coverage meeting the requirements of this Agreement; and
(9) Borrower shall certify in writing to the County Attorney that there exists no Event of Default nor any act, failure, omission or condition that would constitute an Event of Default under this Agreement or and the CDBG Loan Documents; and
(10) Borrower shall have provided to the County Attorney with a legal opinion from the Borrower’s Attorney addressed to the County Board, in substantially the form attached hereto as Exhibit G, opining, among other things, that the Borrower is in full compliance with all legal requirements in its formation and execution of the CDBG Loan Documents. In the event that any of the Project Documents Funding Conditions are not satisfied on or Project Loan Documents to which it is a partybefore the Effective Date, nor compliance or such later date as may be approved in writing by it with the terms County Attorney in the sole and provisions hereof or thereof, including, without limitationabsolute discretion of the County Attorney, the assignment of the Project Documents and Project Assets County Board may terminate this Agreement by delivering written notice to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessBorrower.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Community Development Block Grant Subrecipient and Loan Agreement
Conditions. The obligation of Cogentrix GP This Amendment shall not be effective unless and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):until:
(a) The Project Revolver Administrative Agent and Term Administrative Agent shall have received this Amendment duly executed by Borrower, Guarantors, Revolver Administrative Agent, Term Administrative Agent, the Aggregate Majority Lenders, the Majority Lenders under the Revolving Credit Facilities Agreement and the Project Loan Documents shall have been approved by Majority Term A Lenders under the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Term A Credit Agreement;
(b) All conditions Revolver Administrative Agent and Term A Administrative Agent shall have received an officer’s certificate of Borrower certifying (i) as to the closing constituent documents of Borrower (or, if applicable, as to the absence of any changes thereto since the date such constituent documents of Borrower were last certified to Revolver Administrative Agent and Term A Administrative Agent) and (ii) resolutions adopted by the Board of Directors of Borrower authorizing the execution, delivery, and performance of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.Amendment Documents;
(c) The contribution Revolver Administrative Agent shall have received, (i) for the benefit of each Revolver Lender that provides their signature pages to this Amendment by VF Delaware contemplated by noon, New York City time on February 12, 2009 (each a “Consenting Revolver Lender”), a fee equal to $15,000 (provided, however, that, if such Consenting Revolver Lender is also a Consenting Term A Lender, as defined below, such Lender shall only receive, a single payment of $15,000 and the conditions set forth in this Section 3.1(a6(c) and the following Section 6(d) shall have been made be satisfied as to the satisfaction fee payable to such Lender upon payment of Cogentrix GP a single fee of $15,000 for the benefit of such Lender), (ii) such other fees (without duplication of the fee referenced in clause (i) above) and Cogentrix LP expenses in such amounts and evidence thereof reasonably satisfactory at such times as heretofore set forth in a letter agreement between Borrower, Revolver Administrative Agent and Banc of America Securities LLC, and (iii) to Cogentrix GP the extent invoiced on or prior to February 13, 2009 (without duplication of amounts payable under clause (ii) above), such other reasonable out-of-pocket fees and Cogentrix LP shall have been provided to them expenses of the Revolver Administrative Agent as may be then due and payable by VF Delaware.Borrower under the Revolving Credit Agreement;
(d) The following representations or warranties Term A Administrative Agent shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
have received (i) Each for the benefit of VF each Term A Lender that provides their signature pages to this Amendment by noon, New York City time, February 12, 2009 (each a “Consenting Term A Lender”), a fee equal to $15,000 (provided, however, that, if such Consenting Term A Lender is also a Consenting Revolver Lender, such Lender shall only receive a single payment of $15,000 and VF Delaware (Athe conditions set forth in this Section 6(d) is and the foregoing Section 6(c) shall be satisfied as to the fee payable to such Lender upon payment of a limited liability company duly organized, validly existing and in good standing under single fee of $15,000 for the laws benefit of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VFsuch Lender), (Bii) has full power such other fees (without duplication of the fee referenced in clause (i) above) and authority expenses in such amounts and the legal right to incur the obligations provided for at such times as heretofore set forth in this Agreementa letter agreement between Borrower, Term A Administrative Agent and Banc of America Securities LLC, and (Ciii) has taken all necessary action to authorize the executionextent invoiced on or prior to February 13, delivery and performance 2009 (without duplication of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
amounts payable under clause (ii) This Agreement above), such other reasonable out-of-pocket fees and expenses of the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except Term A Administrative Agent as enforceability may be limited then due and payable by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting Borrower under the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.Term A Credit Agreement;
(e) The following representations or warranties Revolver Administrative Agent shall be true and correct have received from Borrower the Seventh Amendment Effective Date Voluntary Loan Paydown, together with accrued, but unpaid, interest thereon, such that the sum of the Fourth Amendment Loan Outstandings plus the Unsecured Letters of Credit shall not exceed $76,085,171.57, as set forth in all respectsSchedule 1.1(a) attached hereto, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to of the Partnership:effective date of this Amendment; and
(if) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organizedTerm A Administrative Agent shall have received from Borrower the Sixth Amendment Effective Date Voluntary Loan Paydown, validly existing and in good standing under together with accrued, but unpaid, interest thereon, such that the laws Principal Debt of the State Term A Loans shall not exceed $52,314,828.45 in the aggregate as of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance effective date of this AgreementAmendment.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Revolving Credit Agreement and Term Loan a Credit Agreement (Standard Pacific Corp /De/)
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are this Amendment shall be subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, and each of the Borrowers and CarrAmerica LP hereby represent and warrant that may be specifically waived each of the following is true and correct in writing by Cogentrix GP or Cogentrix LP, all material respects on and as appropriate):of the date hereof:
(a) The Project Credit Facilities ▇▇▇▇ and the Project Loan Documents CarrAmerica LP shall have been approved by executed and delivered to the Management Committee Lead Agent a Tranche A Note and a Tranche B Note for the Project Loan Documents will be executed by all parties thereto. An original executed copy account of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Bank dated on or before the date hereof complying with the provisions of Section 2.4 of the Credit Agreement;
(b) All conditions the Borrowers and CarrAmerica LP shall have executed and delivered to the closing Lead Agent a duly executed original of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.this Amendment;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) the Borrowers shall have been made paid to the satisfaction Lead Agent for the account of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory the Banks an upfront fee equal to Cogentrix GP and Cogentrix LP shall have been provided to them .25% of the amount by VF Delaware.which each Banks' Commitment is increased hereby;
(d) The following the Borrowers and CarrAmerica LP shall have taken all actions required to authorize the execution and delivery of this Agreement and the other Loan Documents and the performance thereof by the Borrowers and CarrAmerica LP;
(e) Lead Agent shall have received an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., with respect to certain matters of New York, Delaware and Maryland law, acceptable to the Lead Agent, the Banks and their counsel;
(f) the Borrowers and CarrAmerica LP shall have delivered to the Lead Agent such additional documenta tion as the Lead Agent may reasonably request;
(g) no law, regulation, order, judgment or decree of any Governmental Authority shall, and the Lead Agent shall not have received any notice that litigation is pending or threatened which is likely to (i) enjoin, prohibit or restrain the making of the Loans on or after the date hereof or (ii) impose or result in the imposition of a Material Adverse Effect;
(h) no Event of Default, or event that with notice and the passage of time would become an Event of Default, shall have occurred and be continuing on and as of the date hereof before and after giving effect to this Amendment;
(i) all of the representations or and warranties of the Borrowers and CarrAmerica LP contained in the Credit Agreement shall be true and correct in all respects, material respects on and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions of the date hereof; and
(j) there shall have been paid to the Partnership:
(i) Each of VF Lead Agent all fees due and VF Delaware (A) is a limited liability company duly organized, validly existing payable on or before the date hereof and in good standing under all expenses due and payable on or before the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofdate hereof, including, without limitation, the assignment of the Project Documents reasonable attorneys' fees and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respectsexpenses, and are hereby made to VF Delaware other costs and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and expenses incurred in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in connection with this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementAmendment.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Revolving Credit Agreement (Carramerica Realty Corp)
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make the contributions described in Section 3.2 are subject to the satisfaction of each of any other conditions set forth herein or ---------- required by Lender, the following are the conditions precedent (except those conditions, if any, such conditions precedent and such other conditions set forth herein or required by Lender are hereinafter referred to collectively as the "Closing Conditions") that may must be specifically waived in writing by Cogentrix GP or Cogentrix LPsatisfied prior to the release of Lender's signature counterparts to this Agreement and the Additional Documents to which Lender is a party, as appropriatemore particularly provided, below (the "Closing"):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved Receipt by the Management Committee and the Project Loan Documents will be Lender of four original counterparts to this Agreement executed by all of the parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP hereto, properly witnessed, acknowledged and a copy thereof delivered to Cogentrix LP as soon as availablenotarized.
(b) All conditions Receipt by Lender of four (4) original counterparts of that certain Loan Modification Agreement in form and substance satisfactory to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) Lender executed by Borrower, New GP, Lessee and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPLender.
(c) The contribution Receipt by VF Delaware contemplated by Section 3.1(aLender of four (4) shall have been made original counterparts of that certain First Amendment to the satisfaction of Cogentrix GP Four Party Agreement in form and Cogentrix LP and evidence thereof reasonably substance satisfactory to Cogentrix GP Lender executed by Borrower, Lender, LaSalle Bank National Association (f/k/a LaSalle National Bank), as Trustee for Mortgage Pass-Through Certificates Series 1996-2 ("Senior Lender"), Manager and Cogentrix LP shall have been provided to them by VF DelawareLessee.
(d) The following representations or warranties shall be true Receipt by Lender of two (2) original counterparts to that certain Manager Estoppel, Ratification and correct Modification Agreement in all respectsform and substance satisfactory to Lender executed by Manager and Lender.
(e) Receipt by Lender of four (4) original counterparts of that certain Lessee Estoppel, Subordination and are hereby made Agreement in form and substance satisfactory to Cogentrix GP Lender executed by Lender, Borrower and Cogentrix LP Lessee.
(f) Receipt by VF Delaware Lender of fifteen (15) Assignment of Rents and VF as an inducement Revenues relating to their making capital contributions each of the Hotels in form and substance satisfactory to Lender executed by Lessee.
(g) Receipt by Lender of a Security Agreements relating to the Partnership:Hotels in form and substance satisfactory to Lender executed by Lessee.
(h) Receipt by Lender of an Environmental Indemnity Agreement in form and substance satisfactory to Lender executed by New GP.
(i) Each Receipt by Lender of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws an executed copy of the State Restated Management Agreement.
(j) Receipt by Escrow Agent of Delawarean original legal opinion of counsel to Existing GP, in form and substance satisfactory to Lender.
(k) Receipt by Escrow Agent of an original legal opinion of Jenkens & ▇▇▇▇▇▇▇▇▇, in form and substance satisfactory to Lender.
(l) Receipt by Escrow Agent of original legal opinions of Jenkens & ▇▇▇▇▇▇▇▇▇ LLP (CA) and ▇▇▇▇, Stettinius & Hollister LLP (OH) in form and substance satisfactory to Lender.
(m) Receipt by Lender of a nondisqualification opinion of , in form and substance satisfactory to Lender. -----------
(n) Receipt by Lender of evidence reasonably satisfactory to Lender of the ownership consummation of which is 99% the Merger.
(o) Receipt by Agro Power Lender of evidence reasonably satisfactory to Lender that Senior Lender has consented to the Merger and the transactions related thereto described in Section 1% , above.
(p) Receipt by VF (▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ of a federal wire to the attention of iStar Asset Services, Inc. in the case amount set forth in Section 4. Upon confirmation by Lender that the Closing Conditions have been satisfied, Lender shall deliver via courier to ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., Columbia Square, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ one fully executed counterpart original of VF Delaware) or 1% by VF Delaware (in the case of VF)this Agreement and deliver via courier to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, (B) has full power and authority and the legal right to incur the obligations provided for in this AgreementJenkens & ▇▇▇▇▇▇▇▇▇, and (C) has taken all necessary action to authorize the execution▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, delivery and performance Suite 3200, Dallas, Texas 75202 one fully executed counterpart original of this Agreement and the Project Documents documents set forth in (b), (c), (e) and Project Loan Documents (g) above and deliver to which it is a party.
Manager at one fully executed counterpart of the documents -------------------- set forth in (iic) This and (d), above. The release of Lender's signature counterpart to this Agreement and from escrow as described in the Project Documents and Project Loan Documents to which it is a party foregoing sentence shall evidence that all of the Closing Conditions have been duly authorizedsatisfied. Upon satisfaction of the foregoing Closing Conditions as evidenced by the release of Lender's signature page to this Agreement from escrow, executed and delivered by VF Delaware and VF and constitute the legalbut not otherwise, valid and binding obligations of each of VF Delaware and VF enforceable against it Lender's consent provided in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF Section 1 of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessshall become effective.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the This Amendment is conditioned upon Borrowers' satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities Borrowers shall execute and deliver to Lender, in the Project Loan Documents shall have been approved by form attached hereto as Exhibit 19(a), an Amended and Restated Revolving Note with the Management Committee and blanks appropriately filled in (the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available"A&R Revolving Note").
(b) All conditions Borrowers shall cause Guarantor to execute and deliver to Lender an Amendment, Ratification and Confirmation of Surety Agreement (the closing "Surety Ratification") in form and content acceptable to Lender pursuant to which, inter alia, Guarantor shall agree to continue to guaranty and act as surety for all present and future Obligations of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required Borrowers to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofLender, including, without limitation, the assignment all Obligations of the Project Documents and Project Assets ▇▇▇▇▇ to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessLender.
(ivc) It is not an "investment company" or Borrowers shall cause Guarantor to execute and deliver to Lender a company "controlled" by an "investment company" within the meaning securities pledge agreement in form and content acceptable to Lender pursuant to which Guarantor shall pledge to Lender all stock of the Investment Company Act of 1940, as amended▇▇▇▇▇.
(vd) The representations Lender shall have received, reviewed and warranties approved audited financial statements of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of ▇▇▇▇▇ for the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth hereinfiscal years 1997 through 2001.
(e) The following representations or warranties Lender shall have received an opening combined balance sheet of Borrowers in form and content satisfactory to Lender.
(f) Lender shall have received a copy of the final Plan of Merger and all documents executed in connection therewith which shall be true and correct in all respectsthe form attached hereto as Exhibit 19(f).
(g) Lender shall have received search reports against ▇▇▇▇▇ showing no judgments, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions liens, encumbrances or restrictions of any nature with respect to the Partnership:assets of ▇▇▇▇▇ except for those liens in favor of ▇▇▇▇▇ Fargo Business Credit ("▇▇▇▇▇"), which ▇▇▇▇▇ shall agree to promptly terminate pursuant to a payoff letter from ▇▇▇▇▇ in form and content satisfactory to Lender.
(h) Lender shall have received authorizing resolutions for each Borrower and Guarantor with respect to the transactions contemplated hereunder. Lender shall have received current good standing certificates for each Borrower and Guarantor; certificates of no change regarding the articles of incorporation and by-laws for the Existing Borrowers and Guarantor; copies of articles of incorporation and by-laws of ▇▇▇▇▇; an officer's certificate of ▇▇▇▇▇; a copy of the filed Certificate of Merger in respect of the Merger; and such other documents and information as Lender may require, all of which shall be in form and content satisfactory to Lender.
(i) Each Lender shall have received an opinion of Cogentrix GP Borrowers' and Cogentrix LP (A) is a corporation duly organized, validly existing Guarantor's counsel in form and in good standing under content satisfactory to Lender regarding the laws of the State of Delaware, (B) has full power and authority Merger and the legal right to incur the obligations provided for in transactions contemplated by this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementAmendment.
(iij) This Agreement and Project Loan Documents Lender shall have received policies of insurance (or evidence thereof on ▇▇▇▇▇ 27 form) with respect to the assets of ▇▇▇▇▇ in amounts satisfactory to Lender, pursuant to which it is a party have been duly authorizedLender shall be named as lender loss payee and additional insured pursuant to such endorsements as shall be satisfactory to Lender.
(k) Borrowers shall execute and deliver, or cause to be executed and delivered by Cogentrix GP to Lender, at Borrowers' sole cost and Cogentrix LP expense, (i) Term Note A, (ii) Term Note B and constitute (iii) and any and all other documents, agreements, certificates and opinions as Lenders shall request in connection with the legalexecution and delivery of this Amendment or any documents in connection herewith, valid and binding obligations or to further evidence, effect, enforce or protect any of the terms hereof or the rights or remedies granted or intended to be granted to Lender herein or therein, each of Cogentrix GP which shall be in form and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by content applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyto Lender.
(iiil) Neither the executionLender shall have received landlord waiver agreements, delivery or performance by Cogentrix GP warehouseman waiver agreements and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940mortgagee waiver agreements, as amendedapplicable, for all locations of ▇▇▇▇▇.
Appears in 1 contract
Conditions. The obligation If Landlord consents to a Transfer, (i) the terms and conditions of Cogentrix GP and Cogentrix LP this Lease shall in no way be deemed to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved waived or modified, (ii) such consent shall not be deemed consent to any further Transfer by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An either Tenant or any Transferee, (iii) Tenant shall deliver to Landlord, promptly after execution, an original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions all documentation pertaining to the closing Transfer in form reasonably acceptable to Landlord, (iv) Tenant shall furnish upon Landlord’s request a complete statement, certified by an independent certified public accountant, or Tenant’s chief financial officer, setting forth in detail the computation of the Construction/Term Facility any Transfer Premium Tenant has derived and shall have occurred or been satisfied derive from such Transfer, (other than evidence that the capital contributions described v) any assignee shall assume in Section 3.2 have been made) writing ail obligations and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required covenants of Tenant thereafter to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered performed or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing observed under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this AgreementLease, and (Cvi) has taken all necessary action no Transfer relating to authorize the executionthis Lease or agreement entered into with respect thereto, delivery and performance whether with or without Landlord’s consent, shall relieve Tenant or any guarantor of this Agreement Lease from liability under this Lease, Landlord or its authorized representatives shall have the right at all reasonable times to audit the books, records and papers of Tenant relating to any Transfer, and shall have the Project Documents right to make copies thereof. If the Transfer Premium respecting any Transfer shall be found understated, Tenant shall, within thirty (30) days after demand, pay the deficiency and Project Loan Documents to which it is a party.
Landlord’s costs of such audit, and if understated by more than ten percent (ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained10%), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of Landlord shall have the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in cancel this Agreement, and Lease upon thirty (C30) has taken all necessary action days’ notice to authorize the execution, delivery and performance of this AgreementTenant.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Office Lease Agreement (Velti PLC)
Conditions. The obligation 6.1 CONDITIONS TO THE OBLIGATIONS OF COFI, CHARTER MICHIGAN AND CHARTER ONE BANK. Notwithstanding any other provision of Cogentrix GP this Agreement, the obligations of COFI, Charter Michigan and Cogentrix LP Charter One Bank to make consummate the contributions described in Section 3.2 Merger are subject to the satisfaction of each of the following conditions precedent (except as to those conditions, if any, that which COFI may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriatechose to waive):
(a) The Project Credit Facilities subject to the cure provisions set forth in Section 5.8, all of the representations and the Project Loan Documents warranties made by RCSB and Target Bank in this Agreement and in any documents or certificates provided by RCSB and Target Bank shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, material respects as of the date of this Agreement and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions of the Effective Time (after giving effect to the Partnership:Disclosure Supplements delivered by RCSB pursuant to Section 5.10 relating to intervening events) as though made on and as of the Effective Time;
(b) subject to the cure provisions set forth in Section 5.8, RCSB and Target Bank shall have performed in all material respects all obligations and shall have complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them prior to or at the Effective Time;
(c) there shall not have been any action taken or any statute, rule, regulation or order enacted, promulgated or issued or deemed applicable to the Merger by any federal or state government or governmental agency or instrumentality or court, which would prohibit ownership or operation of all or a portion of the business or assets of RCSB or any RCSB Subsidiary by COFI, Charter Michigan or Charter One Bank, or would compel COFI, Charter Michigan or Charter One Bank to dispose of all or a portion of the business or assets of RCSB or any RCSB Subsidiary, as a result of this Agreement, or which would render any party hereto unable to consummate the transactions contemplated by this Agreement;
(d) since the date hereof, RCSB shall not have suffered Material Adverse Effect;
(e) no regulatory authority shall impose any non-standard or unduly burdensome condition relating to the Merger, as determined in the reasonable judgment of COFI;
(f) COFI shall have received the opinion of Harr▇▇ ▇▇▇ch & Wilc▇▇, ▇.L.P., counsel to RCSB, in the form of the attached Exhibit F;
(g) COFI shall have received a certificate signed by the President and Chief Executive Officer of RCSB and Target Bank, dated as of the Effective Time, certifying that based upon his best knowledge, the conditions set forth in Sections 6.1(a), (b), (d), (l) and (m) hereof have been satisfied.
(h) simultaneous with the execution and delivery of this Agreement, (i) the directors of RCSB who are stockholders of RCSB shall have executed and delivered to COFI Voting Agreements in the form attached hereto as Exhibit A and (ii) immediately after the execution and delivery of this Agreement, the Stock Option Agreement shall have been executed and delivered by COFI and RCSB in the form attached hereto as Exhibit B;
(i) Each COFI shall have received from Deloitte & Touche L.L.P. a letter, in the form then customarily issued by such accountants in transactions of VF this type, to the effect that the Merger will qualify for pooling of interests accounting treatment;
(j) COFI shall have received the letters referred to in Section 5.3 from all executive officers and VF Delaware directors of RCSB and all stockholders who are affiliates of RCSB;
(Ak) Within five days prior to mailing the Joint Proxy Statement to the stockholders of COFI, COFI shall have received from Mont▇▇▇▇▇▇ ▇▇▇urities (or another investment banking firm reasonably acceptable to COFI) a written opinion to the effect that the Company Merger is fair to the COFI stockholders from a limited liability company duly organizedfinancial point of view;
(l) Since November 30, validly existing and in good standing under 1996 to the laws of the State of DelawareClosing Date, the ownership average monthly originations of which is 99% by Agro Power auto loans and 1% by VF leases of RCSB and the RCSB Subsidiaries shall not exceed $92,000,000 (or a pro rata portion thereof in the case of VF Delawarethe calendar month that Closing occurs); and
(m) or 1% by VF Delaware (in monthly net charge-offs for the case auto indirect portfolio of VF), (B) has full power and authority RCSB and the legal right to incur RCSB Subsidiaries based upon current charge-off accounting methodology utilized by American Credit Services, Inc., on the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance date of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any shall not exceed .125% of the Project Documents or Project Loan Documents to which it is a partymonthly average outstanding portfolio balance for any two calendar months commencing May, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business1997.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Charter One Financial Inc)
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each The Borrower shall promptly notify the Senior Lenders of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and any loss in good standing under the laws excess of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party$500,000.
(ii) This Agreement All policies of property, business interruption, installation and transportation insurance shall provide that the Project Documents and Project Loan Documents proceeds of such policies shall be payable solely to which it is the Senior Lenders pursuant to a party standard first mortgage endorsement substantially equivalent to the Lenders Loss Payable Endorsement 438BFU or ISO endorsement CP12181091, without contribution; provided that if the proceeds thereof are less than $500,000, such proceeds shall be paid to the Borrower. The Senior Lenders shall have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations right to join the Borrower in adjusting any loss in excess of each $500,000. All policies (other than in respect to liability or workers compensation insurance) shall insure the interests of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights Senior Lenders regardless of creditors generallyany foreclosure relating to the Project.
(iii) Neither A loss under any property, business interruption, installation or transportation insurance shall be adjusted with the executioninsurance companies, delivery or performance including the 'filing in a timely manner of appropriate proceedings, by VF Delaware or VF of this Agreement or any the Borrower, subject to the approval of the Project Documents or Project Loan Documents Senior Lenders if such loss is in excess of $500,000. In addition, the Borrower may in its reasonable judgment consent to which it is a partythe settlement of any loss, nor compliance by it with provided that in the event that the amount of the loss exceeds $500,000 the terms and provisions hereof or thereof, including, without limitation, of such settlement is concurred with by the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessSenior Lenders.
(iv) It is not an "investment company" All policies of insurance required to be maintained by the Borrower shall be endorsed so that if at any time should they be assigned, canceled, modified or a company "controlled" by an "investment company" within coverage be reduced which affects the meaning interests of the Investment Company Act Senior Lenders, such cancellation or reduction shall not be effective as to the Senior Lenders for 60 days, except for nonpayment of 1940premium which shall be for 10 days, as amendedafter receipt by the Senior Lenders of written notice from such insurer of such cancellation or reduction.
(v) The representations and warranties All policies of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed property insurance required to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties maintained by the Borrower shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organizednot include any annual or term aggregate limits of liability or clause requiring the payment of additional premium to reinstate the limits after loss except as regards the insurance applicable to the perils of flood, validly existing earth movement, sabotage and in good standing under the laws of the State of Delawareterrorism, (B) has full power and authority and shall include the legal right to incur the obligations provided for in this Agreement, Senior Lenders as additional insured as its interest may appear and (C) has taken all necessary action include a clause requiring the insurer to authorize make final payment on any claim within 45 days after the execution, delivery submission of proof of loss and performance of this Agreementits acceptance by the insurer.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Common Agreement (Sr Telecom Inc)
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and This Agreement will become effective on the Project Loan Documents date on which this Agreement shall have been approved executed and delivered by the Management Committee Borrower, the other Loan Parties, the Administrative Agent and the Project 2017-1 Incremental Term Loan Documents will be executed Lenders; provided that the amendments to the Credit Agreement contemplated by all parties thereto. An original executed copy Section 2 hereof shall only become effective upon the satisfaction (or waiver by the 2017-1 Incremental Term Loan Lenders) of each Project Loan Document will be delivered to Cogentrix GP the conditions set forth in Section 3(b) below and a copy thereof delivered to Cogentrix LP as soon as availablethe funding of the 2017-1 Incremental Term Loans.
(b) All Each 2017-1 Incremental Term Loan Lender shall be required to fund its 2017-1 Incremental Term Loan Commitment when the following conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence or waived by the 2017-1 Incremental Term Loan Lenders) (such date, the “Effective Date”):
(i) the Administrative Agent shall have received a certificate of the Borrower dated as of the Effective Date signed by a Responsible Officer of the Borrower (i) (A) certifying and attaching the resolutions or similar consents adopted by the Borrower approving or consenting to this Agreement and the incurrence of the 2017-1 Incremental Term Loans, (B) certifying that the capital contributions described certificate or articles of incorporation and by-laws of the Borrower either (x) has not been amended since the Closing Date or (y) is attached as an exhibit to such certificate, and (C) certifying as to the incumbency and specimen signature of each officer executing this Agreement and any related documents on behalf of the Borrower and (ii) certifying as to the matters set forth in Section 3.2 clauses (iv), (v) and (vi) below;
(ii) all fees and out-of-pocket expenses for which invoices have been madepresented prior to the Effective Date (including the reasonable fees and expenses of legal counsel) and all governmental consents, approvals, permits and licenses and required to be paid or reimbursed by the Borrower pursuant to Section 10.5 of the Credit Agreement or any other deliveries letter agreement in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility this Agreement shall have been delivered paid or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.reimbursed;
(ciii) The contribution by VF Delaware contemplated by Section 3.1(a) the Administrative Agent shall have been made to the satisfaction received an opinion of Cogentrix GP ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, in form and Cogentrix LP and evidence thereof substance reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.the Administrative Agent;
(div) The following each of the representations or and warranties made by each Loan Party contained in the Credit Agreement and in the other Loan Documents shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF material respects as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State Effective Date as if made on and as of Delawaresuch date (other than representations and warranties which speak only as of a certain date, the ownership of which is 99% by Agro Power representations and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VFwarranties shall be made only on such date), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.;
(v) The the representations and warranties in Section 5 of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties this Agreement shall be true and correct in all respects, material respects as of the Effective Date;
(vi) no Event of Default shall exist on the Effective Date immediately before and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions after giving effect to the Partnership:effectiveness hereof; and
(ivii) Each of Cogentrix GP and Cogentrix LP (A) is the Borrower shall have delivered to the Administrative Agent a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it Borrowing Notice in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any Section 2.2 of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessCredit Agreement.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation effectiveness of Cogentrix GP this Agreement is conditioned upon the execution and Cogentrix LP to make delivery of this Agreement and the contributions described receipt by Bank of a loan modification fee in Section 3.2 are subject to the satisfaction amount of each Fifty Thousand Dollars ($50,000). This Loan Modification Agreement is executed as of the following date first written above. By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By : /s/ ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇ Title: CFO & V.P., Corporate Development Title: Relationship Manager TO: SILICON VALLEY BANK Date: FROM: ISTA PHARMACEUTICALS, INC. The undersigned authorized officer of ISTA PHARMACEUTICALS, INC., a Delaware corporation (“Borrower”) certifies that under the terms and conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied Amended and Restated Loan and Security Agreement between Borrower and Bank (other than evidence that the capital contributions described “Agreement”), (1) Borrower is in Section 3.2 have been madecomplete compliance for the period ending with all required covenants except as noted below, (2) there are no Events of Default, (3) all representations and all governmental consents, approvals, permits and licenses and other deliveries warranties in connection with the Project which Agreement are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respectsmaterial respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, (4) Borrower, and are hereby made to Cogentrix GP each of its Subsidiaries, has timely filed all required tax returns and Cogentrix LP reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by VF Delaware and VF Borrower except as an inducement to their making capital contributions otherwise permitted pursuant to the Partnership:
(i) Each terms of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws Section 5.9 of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C5) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party no Liens have been duly authorized, executed and delivered by VF Delaware and VF and constitute levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank. Attached are the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it required documents supporting the certification. The undersigned certifies that these are prepared in accordance with their terms, generally GAAP consistently applied from one period to the next except as enforceability explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium requested at any time or similar laws affecting the rights date of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or determination that Borrower is not in compliance with any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize that compliance is determined not just at the executiondate this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement. Monthly financial statements with Compliance Certificate Monthly within 30 days Yes No 10-Q, delivery 10-K and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized8-K Within 5 days after filing with SEC Yes No Borrowing Base Certificate, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" A/R & A/P Agings Monthly within the meaning of the Investment Company Act of 1940, as amended.20 days if borrowing Yes No
Appears in 1 contract
Sources: Loan Modification Agreement (Ista Pharmaceuticals Inc)
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make the contributions described in Section 3.2 are subject any other conditions to the satisfaction Loan set out in this Agreement, PFG will not make any Loan until PFG shall have received from each Borrower, in form and substance satisfactory to PFG, such documents, and completion of each such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, significantly and adversely affect or be reasonably expected to significantly and adversely affect the collectability of the following conditions precedent (except those conditionsObligations, if anyPFG’s security interest in Borrower’s Collateral or the value thereof. Notwithstanding the foregoing, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of Borrower agrees to deliver to PFG each Project Loan Document will item required to be delivered to Cogentrix GP and PFG under this Agreement as a copy thereof delivered condition precedent to Cogentrix LP as soon as available.
(b) All conditions any Loan. Borrower expressly agrees that a Loan made prior to the closing receipt by PFG of any such item shall not constitute a waiver by PFG of Borrower’s obligation to deliver such item, and the Construction/Term Facility making of any Loan in the absence of a required item shall have occurred or been satisfied (other than evidence that be in PFG’s sole discretion. Without limiting the capital contributions described in Section 3.2 have been made) and all governmental consentsforegoing, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility Loan, Borrower shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipprovide:
(i) Each duly executed original signatures of VF Borrower to this Agreement and VF Delaware such other Loan Documents, including reaffirmations of agreements to which Borrower is was party on the Original Loan Effective Date, including without limitation, this Agreement, the Intellectual Property Security Agreement and related Collateral Agreements and Notices and the PFG Warrant;
(Aii) is If amended since the Original Loan Effective Date, each Borrower’s respective Constitutional Documents and, where applicable, a limited liability company duly organized, validly existing and in good standing under certificate of Borrower certified by the laws Secretary of State or other Governmental Body of the State jurisdiction of Delawareformation of each Borrower, as of a date no earlier than thirty (30) days prior to the ownership of which is 99% by Agro Power and 1% by VF (date hereof, together with, in the case of VF Delawareeach Borrower, a foreign qualification certificate from each States in which Borrower is required to register or otherwise qualify to do business;
(iii) An amendment to the PFG Warrant (as issued to PFG, PFG Equity Investors, LLC and SVB Financial Group);
(iv) To the extent requiring amendment or 1% supplementation to reflect any new Collateral Accounts, Control Agreements as required by VF Delaware Section 8(b) of this Schedule, duly executed by Borrower and each relevant depositary institution in favor of PFG;
(v) certified copies, dated as of a recent date, of Security Instrument searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such Security Instruments either constitute Permitted Liens or have been or, in connection with the case Loan, will be terminated or released;
(vi) if required, an update to the Representations, duly executed by Borrower;
(vii) as required under the terms of VF)this Agreement and not previously provided, (B) has full power and authority and the legal right to incur the obligations provided for landlord consents executed in this Agreementfavor of PFG by Borrower’s principal office lessor in respect of its premises in San Ramon, California and, if required by PFG, each other premises where Borrower holds Collateral with a fair value in excess of $10,000, and warehouseman’s/bailee waivers in respect of third party premises where Collateral with a fair value in excess of $10,000 is stored or housed;
(Cviii) has taken all necessary action to authorize the extent to reflect any changes since the Original Loan Effective Date, the insurance policies and/or endorsements required pursuant to Section 5.2;
(ix) payment of the Fees specified in Section 3 of this Schedule and PFG Expenses incurred and paid in connection with the Loan, for which PFG Expenses PFG will provide Borrower such invoices as Borrower may reasonably require for accounting purposes;
(x) any third party consents required in order for Borrower to enter into and perform the Loan Documents;
(xi) notice of the this Agreement as required under the Subordination Agreement;
(xii) as required, execution, delivery and performance (as necessary or appropriate) filing of all Security Instruments; and
(xiii) to the extent that the conditions to this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have not been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct completed as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LPEffective Date, mutatis mutandis, as if fully set forth herein.
(e) The following representations a post-closing obligations letter in PFG’s customary form by which PFG waives or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and defers performance of this Agreementsuch conditions as PFG is willing to defer in its sole business discretion.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. Mutual Conditions Precedent
6.1 The obligation respective obligations of Cogentrix GP and Cogentrix LP the Parties hereto to make complete the contributions described in Section 3.2 are transactions contemplated by this Agreement shall be subject to the satisfaction of each satisfaction, on or before the Effective Date, or earlier date where specified, of the following conditions precedent (except those conditionsprecedent, if any, that each of which may only be specifically waived in writing full or in part by Cogentrix GP or Cogentrix LP, as appropriatethe mutual consent of Mainland and American Exploration (and only to the extent such waiver is permitted by applicable Law):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents Board of Directors of Mainland will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershiphave:
(i) Each of VF determined that the Merger is fair to the Mainland Shareholders and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case best interests of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.Mainland;
(ii) This Agreement received the Fairness Opinion prepared for Mainland to the effect that, subject to the assumptions, qualifications and limitations relating to such opinion, as of the Project Documents and Project Loan Documents date of this Agreement, the Merger is fair from a financial point of view to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations holders of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.Mainland Shares; and
(iii) Neither determined to recommend that the executionMainland Shareholders vote in favor of the Merger;
(b) The Board of Directors of American Exploration will have
(i) determined that the Merger is fair to the American Exploration Shareholders and is in the best interests of American Exploration;
(ii) received the Fairness Opinion prepared for American Exploration to the effect that, delivery or performance by VF Delaware or VF subject to the assumptions, qualifications and limitations relating to such opinion, as of the date of this Agreement or any Agreement, the Merger is fair from a financial point of view to holders of American Exploration Shares; and
(iii) determined to recommend that the American Exploration Shareholders vote in favor of the Project Documents Merger;
(c) the Merger shall have been approved at the American Exploration Meeting by more than 50% of the votes cast by the American Exploration Shareholders represented in person or Project Loan Documents by proxy at the American Exploration Meeting which actually vote in favor or against the American Exploration Merger Resolutions;
(d) the Merger shall have been approved at the Mainland Meeting by more than 50% of the votes cast by the Mainland Shareholders represented in person or by proxy at the Mainland Meeting which actually vote in favor or against the Mainland Merger Resolutions;
(e) each of Mainland and American Exploration shall have completed their due diligence inspection conducted in conjunction with the Merger and the transactions contemplated herein to which it is the satisfaction of Mainland and American Exploration, respectively;
(f) there shall not be in force any order or decree restraining or enjoining the consummation of the transactions contemplated by this Agreement and there shall be no proceeding, of a partyjudicial or administrative nature or otherwise, nor compliance brought by it a Governmental Entity in progress or threatened that relates to or results from the transactions contemplated by this Agreement that would, if successful, result in an order or ruling that would preclude completion of the transactions contemplated by this Agreement in accordance with the terms and provisions hereof or thereofwould otherwise be inconsistent with any regulatory approvals which have been obtained;
(g) all consents, includingwaivers, without limitationpermits, orders and approvals of any Governmental Entity and the expiry of any waiting periods, in connection with, or required to permit the consummation of the Merger, the assignment failure of which to obtain or the non-expiry of which would constitute a criminal offence, or would have a Material Adverse Effect on Mainland or American Exploration, as the case may be, shall have been obtained or received on terms that will not have a Material Adverse Effect on Mainland and/or American Exploration;
(h) there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity, in each case that has a reasonable likelihood of success;
(i) seeking to restrain or prohibit the consummation of the Project Documents and Project Assets Merger or seeking to obtain from Mainland or American Exploration any damages that are material in relation to American Exploration taken as a whole;
(ii) seeking to prohibit or materially limit the Partnership, requires the consent ownership or authorization operation by Mainland of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any material portion of the termsBusiness or Assets of American Exploration or to compel Mainland to dispose of or hold separate any material portion of the Business or Assets of American Exploration, conditions as a result of the Merger;
(iii) seeking to prohibit Mainland from effectively controlling in any material respect the Business or provisions operations of any Requirement of Law applicable to it or its assets or business.American Exploration; or
(iv) It there is not an "investment company" in effect any other circumstance which is reasonably likely to have a Material Adverse Effect on Mainland or a company "controlled" by an "investment company" within American Exploration or the meaning of the Investment Company Act of 1940, as amended.Surviving Corporation;
(vi) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant all necessary regulatory approvals shall have been obtained; and
(j) neither party shall have given notice to any of the Project Documents or Project Loan Documents are true and correct as other within thirty (30) days of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to terminating this Agreement based on the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws results of the State of Delawaredue diligence investigation conducted by the party giving notice. It is the parties' intention that each party shall have a due diligence investigation period, expiring thirty (B30) has full power and authority and days from the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP date of this Agreement, nor compliance by it with in order to conduct such due diligence investigations as the terms and provisions hereofparties deem necessary to determine the feasibility, requires the consent economic or authorization of any other party (except such as have been duly obtained)otherwise, or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the termstransactions contemplated in this Agreement. Either party may terminate this Agreement at any time within such thirty (30) day period by delivery to the other of written notice of termination of this Agreement. Upon such termination, conditions or provisions this Agreement shall be of any Requirement of Law applicable to it or no further force and effect. Either party may waive the due diligence period in writing at its assets or businessoption.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are Article 2 of this Amendment is subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):precedent:
(a) The Project Credit Facilities Each Lender whose Commitment amount has changed pursuant to this Amendment and who has requested a promissory note under the Project Loan Documents terms of Section 2.09 of the Agreement prior to the Effective Date, shall have been approved by received a duly executed promissory note in the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy amount of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.its Commitment;
(b) All conditions The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the closing organization, existence and good standing of the Construction/Term Facility shall have occurred or been satisfied (Borrower and the Guarantors, the authorization of the Transactions and any other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition legal matters relating to the funding of Borrower, the Construction/Term Facility Guarantors, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Revolving Facility shall have been delivered or received. A copy of all such deliveries Administrative Agent and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.its counsel;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) Administrative Agent shall have been made received all fees and other amounts due and payable by Borrower on or prior to the satisfaction Effective Date under the Fee Letter between Borrower and Administrative Agent dated September 7, 2012, all fees and other amounts due and payable by Borrower on or prior to the Effective Date under the Agreement and, to the extent invoiced, reimbursement or payment of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory all out-of-pocket expenses required as of the Effective Date to Cogentrix GP and Cogentrix LP shall have been provided to them be reimbursed or paid by VF Delaware.the Borrower under the Agreement;
(d) The following Administrative Agent shall have received true and correct copies of the executed amendments to the Note Purchase Agreements governing the Senior Notes which shall modify the definition of Consolidated EBITDA included therein in a manner that is in form and substance acceptable to the Administrative Agent;
(e) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of counsel for the Borrower and the Guarantors, covering the matters set forth in Sections 3.01, 3.02 and 3.03 of the Agreement in respect of this Amendment and any Loan Documents executed in connection herewith and covering such other matters relating to the Borrower, the Guarantors, this Agreement or the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion;
(f) The representations or and warranties contained herein and in the Agreement, as amended hereby, shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF material respects as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, Effective Date as if made on the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their termsdate hereof, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except for such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of limited by their respective Affiliates in or pursuant terms to any of the Project Documents or Project Loan Documents are true and correct a specific date; and
(g) No Default shall exist as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth hereinEffective Date.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP Each Backstop Party’s commitments and Cogentrix LP agreements hereunder are subject only to make the contributions described conditions precedent set forth in Section 3.2 are subject titled “Conditions Precedent to Effectiveness on the Closing Date” and the Section titled “Conditions Precedent to All Borrowings” set forth in the Term Sheet and the following conditions: (a) the satisfaction of each at least two (2) non-Affiliated Consenting First Lien Creditors represented by ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP (“Akin Gump”) that collectively hold at least a majority of the following conditions precedent aggregate Backstop Commitments held by all such Backstop Parties (except those conditionsthe “Required Backstop Parties”) with the form and substance of the Definitive Financing Documentation that will be included in the Plan Supplement; (b) all reasonable and documented out-of-pocket costs, if anyfees, that may be specifically waived in writing by Cogentrix GP or Cogentrix LPexpenses (including, as appropriate):
(awithout limitation, legal and financial advisory fees and expenses) The Project Credit Facilities and other compensation payable to the Administrative Agent and the Project Loan Documents Backstop Parties (including, without limitation, the Put Option Premium) pursuant to this Commitment Letter or otherwise payable pursuant to the Definitive Financing Documentation or the Restructuring Support Agreement shall have been approved by paid; (c) execution and delivery of definitive loan documents related to the Management Committee Exit Facility including, without limitation, a credit agreement, guarantees, security agreements, pledge agreements, opinions of counsel, officer’s certificates, certificates of good standings, corporate organizational documents and other related definitive documents (collectively, the “Definitive Financing Documentation”) that are consistent with the terms set forth in this Commitment Letter and the Project Loan Term Sheet (including the Documentation Principles) and are otherwise acceptable to the Required Backstop Parties, each other Backstop Party (to the extent the Definitive Financing Documents will be executed by all parties thereto. An original executed copy include any modifications or any terms referred to in Section 8 hereof which require the prior written consent of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been madeBackstop Party) and all governmental consentsyou, approvals, permits and licenses and other deliveries in connection with the Project which such modifications (i) as are required to be received by incorporate administrative agency, operational and other ministerial administration provisions customary for the Construction/Term Lender as a condition Administrative Agent and reasonably acceptable to the funding Required Backstop Parties and you and (ii) as are acceptable to the Required Backstop Parties, each other Backstop Party (to the extent the Definitive Financing Documents include any modifications or any terms referred to in Section 8 hereof which require the prior written consent of each Backstop Party) and you; (d) notwithstanding the Construction/Term Facility foregoing, all documents and instruments required to create and perfect the Administrative Agent’s first priority security interest in the Collateral (free and clear of all liens, subject to customary exclusions agreed to between the Borrower and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(aRequired Backstop Parties) shall have been made executed (if applicable) and delivered and, if applicable, be filed with the appropriate filing office, in each case, in form and substance satisfactory to the satisfaction Required Backstop Parties; provided that the terms of Cogentrix GP the Definitive Facilities Documentation shall be in a form such that it does not impair the availability of, and Cogentrix LP initial funding under, the Exit Facility on the Closing Date if the conditions expressly in this Section 4 are satisfied (it being understood that, to the extent any security interest in any Collateral referred to in Exhibit A under the heading “Security” (other than to the extent a lien on such Collateral may be perfected by the filing of a financing statement under the Uniform Commercial Code (“UCC”) (solely to the extent required in Exhibit A under the heading “Security”)) is not or cannot be provided and/or perfected on the Closing Date after your use of commercially reasonable efforts to do so, the provision and/or perfection of security interests in such Collateral shall not constitute a condition precedent to the availability of the Exit Facility on the Closing Date); (e) accuracy of representations and evidence thereof reasonably satisfactory warranties under the Restructuring Support Agreement and the Definitive Financing Documentation in all material respects with the same effect as though made on and as of such date, except in the case of any representation and warranty which (i) expressly relates to Cogentrix GP a given date, such representation and Cogentrix LP warranty shall have been provided to them be true and correct in all material respects as of the respective date, (ii) is qualified by VF Delaware.
(d) The following representations a materiality or warranties material adverse effect standard in which case such representation and warranty shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither has been waived under the execution, delivery or performance by VF Delaware or VF of this Restructuring Support Agreement or the Definitive Financing Documentation, as applicable; (f) no First Lien Creditor Termination Event, or any event that after notice or passage of time or both would be a First Lien Creditor Termination Event, shall have occurred under the Project Documents or Project Loan Documents to which it is a partyRestructuring Support Agreement, nor in each case, unless waived under the Restructuring Support Agreement; (g) the Debtors shall be in compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result Restructuring Support Agreement in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct all material respects as of the date hereof upon which all conditions precedent herein and in the Restructuring Support Agreement relating to the effectiveness of the Definitive Financing Documentation are hereby deemed satisfied (the “Closing Date”) and the Borrower and each of the Guarantors party to be made the Restructuring Support Agreement shall have satisfied each of the conditions precedent to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully the Restructuring Transactions set forth herein.
(e) The following representations or warranties shall be true and correct in all respectsthe Restructuring Support Agreement, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions in each case, except to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing extent such compliance or conditions have been waived under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Restructuring Support Agreement, ; and (Ch) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party Restructuring Transactions shall have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may consummated or will be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it consummated substantially concurrently with the terms and provisions hereofentry into the Definitive Financing Documentation, requires to the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of extent required under the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.Restructuring Support Agreement.
Appears in 1 contract
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described amendments set forth in Section 3.2 are 2 and the limited waivers set forth in Section 3 of this Amendment, in each case, is subject to the satisfaction of each of the following conditions precedent on or prior to April 5, 2019 (except those conditionssuch date of satisfaction, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriatethe “Second Amendment Effective Date”):
(a) The Project Credit Facilities the execution and delivery of this Amendment by Borrower, each other Loan Party, Agent and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Required Lenders;
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described representations and warranties in Section 3.2 have been made) 3 and all governmental consentsSection 5 of this Amendment being true, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true complete and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
material respects (i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization duplication of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(ivmateriality qualifier contained therein) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and as of the Second Amendment Effective Date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties are hereby deemed true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date);
(c) no Default or Event of Default has occurred or is continuing (or would result after giving effect to the transactions contemplated by this Amendment, the Second Amendment First Out Waterfall Notes, the Second Amendment Warrants (as defined below) and the other Loan Documents (as amended hereby, as applicable) and the ABL Amendment and the other ABL Debt Documents (as amended by the ABL Amendment, as applicable));
(d) the receipt in cash by the Secured Parties of the payment of all fees, costs and expenses incurred thereby on or prior to the date of this Amendment that are required to be made reimbursed pursuant to Cogentrix GP Section 6.3 of the Facility Agreement or Section 9 of this Amendment and Cogentrix LPall other fees, mutatis mutandiscosts and expenses incurred in connection with this Amendment (and the transactions contemplated hereby) by the Secured Parties (including, as if fully set forth herein.in each case, all attorneys’ fees of the Secured Parties and any estimates of post-closing fees, costs and expenses (including all attorneys’ fees) expected to be incurred by the Secured Parties in connection with this Amendment);
(e) The following representations or warranties shall be true the receipt by the Agent and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions the Lenders of a fully executed copy of a corresponding amendment to the Partnership:ABL Credit Facility in form and substance reasonably satisfactory to the Agent and the Lenders (the “ABL Amendment”);
(if) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, issuance and delivery and performance to the First Out Waterfall Lenders of this Agreement.
new First Out Waterfall Notes (iieach in the form of a First Out Waterfall Note attached to the Amended Facility Agreement as Exhibit A-3) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute (the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it “Second Amendment First Out Waterfall Notes”) in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iiiSection 1.4(c) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.Amended Facility Agreement;
Appears in 1 contract
Conditions. The obligation conditions for the issuance of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 Additional Certificates are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipfollows:
(i) Each the execution and delivery of VF and VF Delaware the applicable Trust Agreements (Ain all material respects, apart from economic terms similar to the Initial Trust Agreements) is a limited liability company duly organized, validly existing and in good standing pursuant to which such Additional Certificates are to be issued;
(ii) the Trustee under the laws applicable Trust Agreement(s) shall be the Trustee under all the other Trust Agreements;
(iii) the applicable Additional Policy (if any) and/or Additional Liquidity Facilities (if any) shall be in all material respects, apart from economic terms similar to the Initial Policy, the Initial Primary Liquidity Facility and the Initial Above-Cap Liquidity Facility, as the case may be;
(iv) (a) the execution and delivery of a Note Purchase Agreement (in all material respects, apart from economic terms similar to the Initial Note Purchase Agreement pertaining to the applicable Additional Notes and satisfaction of all conditions specified therein;
(v) the execution and delivery by the Trustee (in its capacity as Trustee under the Trust Agreements for such Additional Certificates) and each Additional Policy Provider and Additional Liquidity Provider of a joinder agreement, in form and substance satisfactory to the Subordination Agent, agreeing to become subject to this Intercreditor Agreement, the Collateral Maintenance Agreement and the Reference Agency Agreement;
(vi) issuance of Additional Equipment Note(s) to be acquired and held by the applicable Trustee for such Additional Certificates pursuant to the Indenture in compliance with all conditions thereto specified in Section 11.03 of the State Indenture, and delivery of Delaware, such Additional Equipment Note(s) to such Trustee on behalf of the ownership applicable Trust(s));
(vii) confirmation from each Rating Agency that the issuance of which is 99% by Agro Power the applicable Additional Equipment Notes and 1% by VF Additional Certificates will not result in the reduction or withdrawal of the then current ratings on each Class of outstanding Certificates (without regard to the applicable Policy in the case of VF Delawareany Insured Senior Certificates); and receipt from each Rating Agency of ratings with respect to the Additional Certificates; and
(viii) the prior written consent of the Initial Policy Provider: (I) if the Additional Certificates are Junior Certificates and (a) such Junior Additional Certificates are to have the benefit of a Liquidity Facility or 1% by VF Delaware (b) if, after giving effect to such issuance, the aggregate outstanding principal amount of all Junior Equipment Notes would at any time equal or exceed the aggregate outstanding principal amount of all Senior Equipment Notes, in each case on the basis of scheduled payments of principal; or (II) if the Additional Certificates are Senior Certificates and either (x) the Capped Interest Rate (or, in the case event such Additional Certificates bear interest at a fixed rate of VF)interest, (Bsuch fixed rate of interest) has full power and authority and in respect thereof exceeds the legal right to incur the obligations provided for Capped Interest Rate in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any respect of the Project Documents Class G-1 Certificates or Project Loan Documents (y) if after giving effect to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitationsuch issuance, the assignment aggregate outstanding Pool Balance of all Senior Additional Certificates of all Classes would be equal to or exceed the aggregate outstanding Pool Balance of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessClass G-1 Certificates.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation obligations of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 parties under this Purchase Agreement are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities representations and warranties contained herein shall be accurate as of the Project Loan Documents shall have been approved by date of delivery of the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availablePreferred Securities.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP[Reserved.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:]
(i) Each Cadwalader, Wickersham & Taft LLP, counsel for the Company and the Trust (the "C▇▇▇▇▇▇ ▇▇▇nse▇"), 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) Ballard Spahr Andrews & Ingersoll, LLP, Maryland counsel for the Com▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ (▇he "▇▇ ▇▇▇▇▇ny 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, and (iii) the Company shall have furnished to the Purchaser the opinion of VF the Company's General Counsel 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, in form and VF Delaware substance satisfactory to the Purchaser. In rendering their opinion, the Company Counsel and the MD Company Counsel may rely as to factual matters upon certificates or other documents furnished by officers, directors and trustees of the Company and the Trust and by government officials (Aprovided, 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 and the MD 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 a limited liability company duly organizednot admitted to practice in the State of New York, validly existing and in good standing under the opinion of the Company Counsel may assume, for purposes of the opinion, that the laws of the State of DelawareNew York are substantively identical, in all respects material to the ownership of which is 99% by Agro Power and 1% by VF (in opinion, to the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar internal laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents state in which such counsel is admitted to practice. Such Company Counsel Opinion shall not state that they are to be governed or Project Loan Documents qualified by, or that they are otherwise subject to, any treatise, written policy or other document relating to which it is a party, nor compliance by it with the terms and provisions hereof or thereoflegal opinions, including, without limitation, the assignment Legal Opinion Accord of the Project Documents and Project Assets to the Partnership, requires the consent or authorization ABA Section of any other party Business Law (except such as have been duly obtained1991), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(ivd) It is not an "investment company" The Purchaser shall have been furnished the opinion of Mayer, Brown, Rowe & Maw LLP, special tax counsel for the Purchaser, dated the Clo▇▇▇▇ Date, addressed to the Purchaser, the Company and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex A hereto. In rendering its opinion, Mayer, Brown, Rowe & Maw LLP may rely as to factual matters upon certificates or a company "controlled" o▇▇▇▇ documents furnished by an "investment company" within the meaning officers, directors and trustees of the Investment Company Act and by government officials (provided, however, that copies of 1940any such certificates or documents are delivered to the Company) and by and upon such other documents as such counsel may, in its reasonable opinion deem appropriate as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth hereina basis for its opinion.
(e) The following representations Purchaser shall have received the opinion of Richards, Layton & Finger, P.A., special Delaware counsel for the De▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 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 B hereto.
(f) The Purchaser shall have received the opinion of Gardere Wynne Sewell LLP, special counsel for the Property Trustee and the I▇▇▇▇▇▇▇▇ ▇▇▇stee, dated the Closing Date, addressed to the Purchaser, in substantially the form set out in Annex C hereto.
(g) The Purchaser shall have received the opinion of Richards, Layton & Finger, P.A., special Delaware counsel for the De▇▇▇▇▇▇ ▇▇▇▇▇▇▇, dated the Closing Date, addressed to the Purchaser and JPMorgan Chase Bank, National Association, in substantially the form set out in Annex D hereto.
(h) The Company shall have furnished to the Purchaser a certificate of the Company, signed by the Chief Executive Officer, President or warranties shall be true and correct in all respectsan Executive Vice President, and are hereby made to VF Delaware Chief Financial Officer, Treasurer or Assistant Treasurer of the Company, and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions the Trust shall have furnished to the Partnership: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) Each of Cogentrix GP the representations and Cogentrix LP (A) is a corporation duly organized, validly existing warranties in this Purchase Agreement are true and in good standing under the laws correct on and as of the State of DelawareClosing Date with the same effect as if made on the Closing Date, (B) has full power and authority and the legal right Company and the Trust have complied with all the agreements and satisfied all the conditions on either of their part to incur be performed or satisfied at or prior to the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.Closing Date; and
(ii) This Agreement and Project Loan Documents to which it is a party have since the date of the Interim Financial Statements (as defined below), there has been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it no material adverse change in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights condition (financial or other), earnings, business or assets of creditors generallythe 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").
(iiii) Neither Subsequent to the execution, delivery or performance by Cogentrix GP and Cogentrix LP execution of this Purchase Agreement, nor compliance by there shall not have been any Material Adverse Change, 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 terms purchase of the Preferred Securities.
(j) Prior to the Closing Date, the Company and provisions hereofthe Trust shall have furnished to the Purchaser and its counsel such further information, requires certificates and documents as the consent Purchaser or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or counsel may reasonably request. If any of the termsconditions specified in this Section 3 shall not have been fulfilled when and as provided in this Purchase Agreement, conditions or provisions if any of any Requirement of Law applicable the opinions, certificates and documents mentioned above or elsewhere in this Purchase Agreement shall not be reasonably satisfactory in form and substance to it the Purchaser or its assets counsel, this Purchase Agreement and all the Purchaser's obligations hereunder may be canceled at, or business.
(iv) It is not an "investment company" at any time prior to, the Closing Date by the Purchaser. Notice of such cancellation shall be given to the Company and the Trust in writing or a company "controlled" by an "investment company" within the meaning telephone or facsimile confirmed in writing. Each certificate signed by any trustee of the Investment Trust or any officer of the Company Act 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 1940the Trust and/or the Company, as amendedthe case may be, and not by such trustee or officer in any individual capacity.
Appears in 1 contract
Sources: Purchase Agreement (American Home Mortgage Investment Corp)
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are this Agreement is subject to the satisfaction of each of the following conditions precedent (except those conditionsthe date on which all such conditions are satisfied and/or waived, if anythe “Restatement Date”):
3.1. The Administrative Agent shall have received the following, that may be specifically waived each in writing by Cogentrix GP or Cogentrix LP, as appropriate):form and substance reasonably satisfactory to it:
(a) The Project Credit Facilities a duly executed and the Project delivered counterpart of this Agreement signed by each Borrower, each other Loan Documents shall have been approved by the Management Committee Party party hereto and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Lender party hereto;
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received a Note executed by the Construction/Term Borrowers in favor of each Lender as requesting a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.Note;
(c) The contribution each IP Security Agreement required to cause all Patents, Patent Licenses, Trademarks, Trademark Licenses, Copyrights, Copyright Licenses and related collateral of the Borrowers and Guarantors to be included in the Collateral, executed by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP applicable Borrower or Guarantor party thereto and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.the Collateral Agent;
(d) The following representations such certificates of resolutions or warranties shall other action, incumbency certificates and/or other certificates of Responsible Officers of each Borrower or Guarantor (or, if applicable, the General Partner acting on behalf such Person) as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be true a party;
(e) such documents and correct in all respectscertifications as the Administrative Agent may reasonably require to evidence that each Borrower and Guarantor is duly organized or formed, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions and, to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, extent available for entities validly existing and in good standing under the laws of the State of Delawarein such jurisdiction, the ownership of which that each Borrower and each Guarantor is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under in its jurisdiction of organization or formation;
(f) a customary opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, as counsel to the laws of Borrowers and Guarantors, addressed to the State of DelawareAdministrative Agent, (B) has full power the Collateral Agent, the L/C Issuers and authority each Lender, as to the matters concerning the Borrowers and Guarantors and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute as the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability Lenders may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.reasonably request;
Appears in 1 contract
Sources: Amendment and Restatement Agreement (CrossAmerica Partners LP)
Conditions. The Investor’s obligation of Cogentrix GP and Cogentrix LP to make fund the contributions described in Section 3.2 are Commitment shall be subject to (i) the execution and delivery of the Acquisition Agreement by the Seller, (ii) satisfaction or waiver of each of the following conditions precedent to Purchaser’s obligations to effect the Closing set forth in Sections 5.1 and 5.2 of the Acquisition Agreement (except those in each case, other than any conditions that by their nature are to be satisfied by actions taken at the Closing, but subject to the prior or substantially concurrent satisfaction or waiver of such conditions), if any(iii) the substantially contemporaneous funding of each of the Co-Investor Equity Investments in accordance with its terms, (iv) the substantially contemporaneous funding of the Debt Financing in accordance with its terms and (v) the substantially simultaneous consummation of the Closing in accordance with the terms of the Acquisition Agreement. Each of Investor and Purchaser shall use its reasonable best efforts to enter into a more detailed instrument or agreement (the “Equity Securities Instrument”) with respect to the Equity Securities that is consistent with the terms and conditions of the Equity Term Sheet as promptly as reasonably practicable after the date hereof; provided, however, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities entry into the Equity Securities Instrument by Investor and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as Purchaser is not a condition to the Investor funding the Commitment and (b) in the event that the Equity Securities Instrument is not entered into by the Closing, then Investor shall fund the Commitment at Closing, and Investor and Purchaser agree that the Equity Term Sheet shall constitute the legally binding agreement between Investor and Purchaser with respect to the Equity Securities. If Investor and Purchaser have not entered into the Equity Securities Instrument by the date that is 30 days after the Closing, then Investor and Purchaser shall submit (and, if either Investor or Purchaser fails to join such submission, the other may independently submit) any remaining unresolved or otherwise undecided terms of the Construction/Term Facility proposed Equity Securities Instrument for decision and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided final resolution to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made binding arbitration to the satisfaction exclusion of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them any courts of law, with such arbitration conducted by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it American Arbitration Association in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation then most current version of its charter documents or by-laws or commercial arbitration rules; provided, that the foregoing shall not prejudice any right of the terms, conditions or provisions of any Requirement of Law applicable a party to it or its assets or business.
(iv) It is not seek an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) order compelling arbitration. Each of Cogentrix GP Investor and Cogentrix LP (A) is a corporation duly organized, validly existing and Purchaser shall use best efforts to negotiate in good standing under faith with all deliberate speed a binding agreement for the laws long-term guaranteed supply of the State of Delaware, (B) has full power and authority and the legal right NAND flash memory products from Toshiba Memory Corporation to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementInvestor.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation willingness of Cogentrix GP the Agent and Cogentrix LP the Lenders to make amend the contributions described in Section 3.2 ---------- Original Agreement, and the effectiveness of the amendments to the Original Agreement contemplated hereby, are subject to the satisfaction of each of the following conditions precedent precedent:
A. The Borrower shall have executed and delivered to the Agent (except those conditions, if any, that may or shall have caused to be specifically waived in writing executed and delivered to the Agent by Cogentrix GP or Cogentrix LP, as appropriate):the appropriate persons) the following:
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availableThis Amendment.
(b) All conditions to True and complete copies of any required stockholders' and/or directors' consents and/or resolutions, authorizing the closing execution and delivery of this Amendment and the other Documents contemplated hereby, certified by the Secretary of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consentsappropriate Company, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPif needed.
(c) The contribution Such other supporting documents and certificates as the Agent or its counsel may reasonably request, within the time period(s) reasonably designated by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF DelawareAgent or its counsel.
(d) The following representations or warranties Borrower's Notes, as set forth below, in each case, in the forms attached hereto as EXHIBIT B (collectively, the "New Notes"): --------- ---------
(a) $20,000,000.00 Amended and Restated Reducing Revolving Credit Note payable to Fleet. (b) $20,000,000.00 Amended and Restated Reducing Revolving Credit Note payable to Finova. (c) $15,000,000.00 Amended and Restated Reducing Revolving Credit Note payable to State Street. (d) $15,000,000.00 Amended and Restated Reducing Revolving Credit Note payable CIBC.
B. The Lenders shall be true and correct in all respects, and have received evidence that (i) the Equity Investors are hereby made obligated to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital make additional cash equity contributions to the Partnership:
Parent of at least $5,000,000 on or before November 1, 1999, (ii) that the Parent is obligated to contribute such $5,000,000 amount to the Borrower upon its receipt of the same from the Equity Investors, and (iii) that the Lenders are made third party beneficiaries of the Equity Investors' and Parent's obligations referenced in clauses (i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and above.
C. The Borrower shall have paid to the Project Documents and Project Loan Documents Agent in immediately available funds for the Lenders' account the following facility fees in the aggregate amount of $1,050,000 payable to which it is the Lenders as follows: Lender Facility Fee ------ ------------ Fleet $ 237,500 Finova ▇▇▇,▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 200,000 CIBC 375,000 ------------ $1,050,000
D. Voyager Data Services, Inc., a party Delaware corporation wholly-owned by the Parent shall have been duly authorized, executed and delivered by VF Delaware to the Agent a Guaranty, Security and VF Pledge Agreement in form acceptable to the Agent.
E. All legal matters incident to the transactions hereby contemplated shall be reasonably satisfactory to the Agent's counsel and constitute the legalLenders shall have received the favorable written opinion of ▇▇▇▇▇▇▇, valid Procter & ▇▇▇▇ LLP, counsel to the Borrower, in form and binding obligations substance satisfactory to the Lenders. V ACKNOWLEDGMENT OF DEFAULTS: WAIVER. ----------------------------------
A. The Borrower, the Agent and the Lenders hereby acknowledge and agree that Item Nos. 1, 6, 9, 11, 12 and 13 listed on Schedule A hereto each ---------- constitutes a breach of a covenant under the Original Agreement and an Event of Default for all purposes of the Credit Agreement and each of VF Delaware the other Loan Documents (the "Specified Defaults"). But for the waiver provided for below, ------------------ each such Specified Default gives rise to the Agent's and VF enforceable against it the Lenders' rights to exercise remedies in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting ARTICLE IX of the rights of creditors generallyCredit Agreement.
(iii) Neither B. The Agent and the executionLenders hereby waive the right to exercise any remedies in accordance with ARTICLE IX of the Credit Agreement arising solely by reason of the occurrence of the Specified Defaults. Such waiver specified in the preceding sentence is limited to the express terms set forth herein and shall not be deemed to be a waiver of any Default other than the Specified Defaults that may have existed on or prior to the date hereof or that may hereafter arise, delivery or performance by VF Delaware or VF of this any other of the Lenders' rights under the Credit Agreement or any of the Project Documents or Project other Loan Documents to which it is a party, nor compliance (other than the rights under the Credit Agreement arising by it with the terms and provisions hereof or thereof, including, without limitation, the assignment reason of the Project Documents Specified Defaults). Neither the granting of the waiver herein nor any prior waivers of Events of Default heretofore effected, give rise to any right to, or expectation of, any waiver by the Agent and Project Assets the Lenders in the future with respect to any Default, whether or not under circumstances similar to those under which the Partnershipwaiver hereunder is being granted or under which previous waivers have been effected, requires and none of the consent Agent or authorization of the Lenders shall have any duty to waive any other party (except such as have been duly obtained)Default, or conflicts or will conflict any right arising with or result in a breach or violation of its charter documents or by-laws or respect thereto, for any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businesspurpose whatsoever.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Credit Agreement (Voyager Net Inc)
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make the contributions described in Section 3.2 are subject any other conditions to the satisfaction initial Facility B Loan set out in this Agreement, PFG will not make any Loan until PFG shall have received from Borrower, in form and substance satisfactory to PFG, such documents, and completion of each such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the collectability of the following conditions precedent (except those conditionsObligations, if anyPFG's security interest in Borrower's Collateral or the value thereof. Notwithstanding the foregoing, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of Borrower agrees to deliver to PFG each Project Loan Document will item required to be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described PFG in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender this Schedule as a condition precedent to any Facility B Loan. Borrower expressly agrees that any Loan made prior to the funding receipt by PFG of the Construction/Term Facility any such item shall not constitute a waiver by PFG of Borrower's obligation to deliver such item, and the Revolving Facility shall have been delivered or received. A copy making of all such deliveries and other evidence any Loan in the absence of the closing a required item shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made in PFG's sole discretion. Without limiting the foregoing, as conditions precedent to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP Facility B Loan, Borrower shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipprovide:
(i) Each duly executed original signatures of VF and VF Delaware (A) Borrower to the Loan Documents to which Borrower is a limited liability company duly organizedparty, validly existing including without limitation, this Agreement, the Intellectual Property Security Agreement and in related Collateral Agreements and Notices, the PFG Warrant, landlord consents and bailee waivers, and subordination agreements among PFG, Borrower and holders of Subordinated Debt;
(ii) Each Borrower's respective Constitutional Documents and, where applicable, a good standing under certificate of Borrower certified by the laws Secretary of State or other Governmental Body of the jurisdiction of formation of Borrower, as of a date no earlier than thirty (30) days prior to the date hereof, together with, in the case of Borrower, a foreign qualification certificate from the State of Delaware, ;
(iii) A Certificate of Incumbency and a Secretary's Certificate certifying the ownership Constitutional Documents of which is 99% by Agro Power Borrower and 1% by VF (in resolutions of the case Board of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize Borrower authorizing the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it such Borrower is a party, nor compliance by it with including the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.PFG Warrant;
(iv) It is not an "investment company" or a company "controlled" Control Agreements as required by an "investment company" within the meaning Section 8(a) of the Investment Company Act this Schedule, duly executed by Borrower and each relevant depositary institution in favor of 1940PFG, as amended.including from Zions Bank;
(v) The representations certified copies, dated as of a recent date, of Security Instrument searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such Security Instruments either constitute Permitted Liens or have been or, in connection with the Loan, will be terminated or released;
(vi) the Representations, duly executed by Borrower,
(vii) landlord consents executed in favor of PFG by Borrower's principal office lessor in respect of its premises in Orem, Utah and, if required by PFG, each other premises where Borrower holds Collateral with a fair value in excess of $10,000, and warranties warehouseman's/bailee waivers in respect of VF Delaware third party premises where Collateral with a fair value in excess of $10,000 is stored or VF or any housed, including Borrower's facilities at in Provo, Utah (Propeller, Inc.), Orlando, Florida (Titan Commercial Warehouse) and St. ▇▇▇▇▇▇▇, Louisiana (Baton Rouge);
(viii) duly executed Warrants in favor of their respective Affiliates PFG and its designees (the "PFG Warrant") to purchase Borrower's common stock, in or agreed form;
(ix) the insurance policies and/or endorsements required pursuant to any Section 5.2;
(x) payment of the Project Documents or Project Loan Documents are true Fees specified in Section 3 of this Schedule and correct as of Lender Expenses incurred in connection with the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.Loan;
(exi) The following representations or warranties shall be true any third party consents required in order for Borrower to enter into and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to perform the Partnership:Loan Documents;
(ixii) Each a Subordination Agreement in agreed form between PFG and Complete Business Solutions Group, Inc.;
(xiii) discharge of Cogentrix GP any liens in favor of Valera Capital LLC and Cogentrix LP ▇▇▇▇▇▇▇ Group LLC;
(Axiv) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority Subordination Agreement between PFG and the legal right holders of Borrower's Series F Preferred Stock;
(xv) the Indebtedness disclosed to incur PFG as the obligations "▇▇▇▇▇▇ debenture", consisting of Indebtedness owing to 9 Borrower investors, shall have been irrevocably converted into the equity securities of Borrower and the evidence of such conversion provided for to PFG;
(xvi) payoff of all Indebtedness and discharge of all Liens of Prestige Financial in this Agreement, and the assets of Borrower;
(Cxvii) has taken all necessary action to authorize the execution, delivery and performance (as necessary or appropriate) filing of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.all Security Instruments; and
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LPincreased Commitments shall become effective, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be Increase Effective Date; provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipthat:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws each of the State of Delaware, conditions set forth in Section 4.02 shall be satisfied on the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.Increase Effective Date;
(ii) This Agreement no Default shall have occurred and be continuing or would result from the Project Documents and Project Loan Documents borrowings to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute be made on the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.Increase Effective Date;
(iii) Neither the execution, delivery or performance by VF Delaware or VF Borrowers shall make any payments required pursuant to Section 2.13 in connection with any adjustment of this Agreement or any of the Project Documents or Project Loan Documents Revolving Loans pursuant to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtainedSection 2.20(d), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.;
(iv) It is not an "investment company" the Borrowers shall deliver or a company "controlled" cause to be delivered any legal opinions or other customary documents reasonably requested by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.Administrative Agent in connection with any such transaction;
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates the Intercreditor Agreement shall have been amended, in or pursuant a manner reasonably satisfactory to any the Administrative Agent, to reflect an increase in the maximum principal amount of the Project Documents aggregate commitments, loans or Project letters of credit included in the Revolving Loan Documents are true and correct Debt (as such term is defined in the Intercreditor Agreement) under Section 10.4(b)(i) of the date hereof and are hereby deemed Intercreditor Agreement in an amount equal to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.the amount of the increased Commitments;
(evi) The following representations or warranties the Deed of Mortgage, dated April 29, 2014, between Tronox Pigments (Holland) B.V. and the Collateral Agent shall be true and correct have been amended, in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions a manner reasonably satisfactory to the Partnership:Administrative Agent, to reflect an increase in the maximum amount secured thereby in an amount equal to the amount of the increased Commitments; and
(ivii) Each if the Administrative Agent determines in its reasonable discretion upon the advice of Cogentrix GP counsel that the same is required by, or advisable under, applicable Requirements of Law, the Borrowers and Cogentrix LP (A) is a corporation duly organizedGuarantors shall enter into any security documents, validly existing and in good standing under amendments, confirmations, reaffirmations or other agreements to maintain the laws Collateral Agent’s fully perfected First Priority Lien on the Collateral, subject to the terms of the State of DelawareIntercreditor Agreement (so long as any Term Loans are outstanding), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party Permitted Securitization Intercreditor Agreement (except such so long as have been duly obtained), any Permitted Securitization is outstanding) or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions terms of any Requirement of Law applicable to it or its assets or businessPermitted Secured Indebtedness Intercreditor Agreement (so long as any Permitted Secured Indebtedness is outstanding).
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Revolving Syndicated Facility Agreement (Tronox LTD)
Conditions. The 3.1 ▇▇▇▇▇’ obligations under this Agreement (including the Commitment) are subject to and conditional upon the following conditions (the “Conditions”):
3.1.1 the satisfaction of the Conditions Precedent (as defined in the Lock-Up Agreement);
3.1.2 without prejudice to the reasonable endeavours nature of the obligation of Cogentrix GP and Cogentrix LP to make the contributions as described in Section 1.1, the Equity Offering shall have been carried out in conformity with all material requirements and conditions set out in the applicable Equity Offering Documents and applicable law and regulation;
3.1.3 there being no material breach by Ferroglobe of its obligations under this Agreement; 1 Ferroglobe to confirm the exact number of new shares issued since the adoption of the 26 October 2017 articles which contain the authority to allot and issue shares. 4830-1361-1238
3.1.4 the filing by Ferroglobe of the applicable Registration Statements for the Equity Offering if it is a public offering or the filing/making of a public announcement of the commencement of the relevant Equity Offering;
3.1.5 entry into a customary registration rights agreement in form and substance consistent with the terms set forth in this Agreement and the Lock-Up Agreement and otherwise on terms and conditions reasonably satisfactory to Ferroglobe and to ▇▇▇▇▇ (the “Registration Rights Agreement”), pursuant to which ▇▇▇▇▇ shall be entitled to ever-green shelf registration rights for the Ever-Green Securities, pursuant to which Ferroglobe will be required to file the Resale Registration Statement covering all Ever-Green Securities;
3.1.6 the payment of all fees, costs, charges and expenses (including, without limitation, any applicable value added tax and any stamp duty and/or stamp duty reserve tax or similar and any legal fees (in accordance with the ▇▇▇▇▇ Fee Arrangement in the case of the ▇▇▇▇▇ Legal Adviser)) properly incurred by or owing to ▇▇▇▇▇ in connection with or relating to this Agreement, the Equity Offering and/or any related arrangement;
3.1.7 payment of the Backstop Fee (as defined in Section 5.1) to ▇▇▇▇▇ concurrently with the allotment and issuance of ▇▇▇▇▇ Shares;
3.1.8 the Lock-Up Agreement being and continuing to be (pending the Transaction Effective Date) in full force and effect;
3.1.9 all consents, approvals, permissions, waivers, authorisations or clearances required by applicable law, constitutional documents and/or regulation (other than any consents, approvals permissions, waivers, authorisations or clearances (i) required under the constitutional documents of ▇▇▇▇▇, (ii) required under any contractual arrangement between ▇▇▇▇▇ and a party other than Ferroglobe, or (iii) that are solely under the control of ▇▇▇▇▇) in connection with Ferroglobe’s allotment and issuance of, and ▇▇▇▇▇’ subscription for, the Ever-Green Securities, have been obtained;
3.1.10 without prejudice to the generality of Section 3.1.9, the waiver and/or disapplication of any pre-emption or other similar rights in connection with the allotment and issuance of, and Ferroglobe having obtained all necessary authority to allot and issue, the Ever-Green Securities;
3.1.11 no event having occurred and being continuing or circumstance existing which would:
(i) upon the expiration of any grace or remedy period;
(ii) upon the expiration of any revocation or dismissal period;
(iii) upon the serving of any notice of termination; or
(iv) but for any remedial action, 4830-1361-1238 give ▇▇▇▇▇ the right to terminate the Lock-Up Agreement pursuant to clause 9.1(c) of the Lock-Up Agreement, unless (x) any such grace period has expired or notice of termination under the Receivables Facility Agreements has been served or remedial action has not been taken, and (y) no party to the Lock-Up Agreement has terminated the Lock-Up Agreement;
3.1.12 Article 6 (Transfers) of the shareholder agreement dated 21 November 2017 between Ferroglobe and Grupo VM (as amended on 23 January 2018) has been removed and any related provisions of such shareholders’ agreement that need to be amended as a consequence of the removal of Article 6 (Transfer) have been amended;
3.1.13 the New $60m Notes will be issued as part of the Transaction Effective Date steps, in accordance with the Lock-Up Agreement (other than the tranche of the New $60m Notes that is specifically contemplated to be issued in advance of the Transaction Effective Date and which have been issued on or prior to the Transaction Effective Date);
3.1.14 the Existing $350m Notes Amendments will become effective as part of the Transaction Effective Date steps, in accordance with the Lock-Up Agreement;
3.1.15 all:
(i) documents that are referred to in limb (b) of the definition “Agreed Form” in the Lock-Up Agreement are in form and substance acceptable to Ferroglobe and ▇▇▇▇▇;
(ii) documents that are referred to in limb (c) of the definition “Agreed Form” in the Lock-Up Agreement are in form and substance acceptable to Ferroglobe and (only in respect of those provisions of such documents which are materially adverse to ▇▇▇▇▇ or directly relevant to its participation in the Transaction) ▇▇▇▇▇; and
(iii) steps that are referred to in limb (d) of the definition “Agreed Form” in the Lock-Up Agreement are in form and substance acceptable to Ferroglobe, ▇▇▇▇▇ and the Majority Ad Hoc Group;
3.1.16 there has been no material breach by any Ferroglobe Party of any of its undertakings under clauses 3.3, 3.4, 3.5 and 18 of the Lock-Up Agreement, unless such breach has been remedied; and
3.1.17 entry into the Non-Disclosure Agreement (as defined below).
3.2 are subject ▇▇▇▇▇ may (at its sole discretion) waive in whole or part one or more of the Conditions.
3.3 Ferroglobe shall use all reasonable endeavours to procure the satisfaction of each of the following conditions precedent Conditions by the Long-Stop Date. 4830-1361-1238
3.4 If any of the Conditions is not fulfilled (except those conditions, if any, that may be specifically or waived in whole or in part in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a▇▇▇▇▇) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consentsLong-Stop Date, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement shall automatically terminate and the Project Documents and Project Loan Documents to which it is a partySection 13.3 shall apply.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are 2(a) of this Agreement is subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be unless specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriatethe Requisite Lenders):
(a) The Project Credit Facilities the Borrower and the Project Loan Documents Guarantors named as signatories hereto and the Requisite Lenders shall have been approved by the Management Committee executed and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.the Administrative Agent their respective counterparts of this Agreement;
(b) All conditions the Borrower shall have paid current principal and interest (at the rate set forth in Section 2.05 of the Credit Agreement) required under the Credit Agreement on the February 27, 2006 payment date prior to the closing payment of the Construction/Term Facility shall have occurred or been satisfied (any other than evidence amounts due on such payment date, including amounts due pursuant to Section 3 of this Agreement; provided, that the capital contributions described in Section 3.2 have been made) and all governmental consentsBorrower shall be permitted to make, approvals, permits and licenses and other deliveries in connection concurrently with the Project which are required to be received by payments of current principal and interest under the Construction/Term Lender as a condition Credit Agreement, payments of current principal and interest on the Borrower’s Second Priority Senior Secured Floating Rate Notes Due 2011 to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.holders thereof;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) the Borrower shall have been made paid to the satisfaction Administrative Agent, in cash or other immediately available funds, reimbursement of Cogentrix GP all outstanding fees and Cogentrix LP and evidence thereof reasonably satisfactory expenses of the Administrative Agent owing under Section 13.02 of the Credit Agreement as well as all other fees owing to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.the Administrative Agent arising under this Agreement, the Credit Agreement or any other agreement; and
(d) The following representations or warranties shall be true a waiver agreement (in form and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions substance reasonably acceptable to the Partnership:
(iAdministrative Agent) Each with the Holders of VF Notes shall have been negotiated and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in shall become effective concurrently with this Agreement, and (C) has taken all necessary action provided, that any conditions to authorize effectiveness or consideration made available to the execution, delivery and performance Holders of this Agreement Notes for such agreement shall be made available to the Administrative Agent and the Project Documents and Project Loan Documents Lenders as conditions to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained)effectiveness of, or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the termsas consideration for, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.this Agreement;
(e) The following representations or warranties the Amendment No. 4 Under Credit and Guarantee Agreement, dated concurrently herewith, among the Borrower, the Guarantors and the Administrative Agent attached as Exhibit I hereto shall be true become effective concurrently with this Agreement;
(f) the Borrower shall have paid the Consent Payment (as defined in the Waiver Request) to each consenting Lender; and
(g) an amendment (in form and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions substance reasonably acceptable to the Partnership:
(iAdministrative Agent) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and Indenture set forth in a Fourth Supplemental Indenture to the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of Indenture shall become effective concurrently with this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Waiver Agreement (Calpine Corp)
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make the contributions described in Section 3.2 are subject any other conditions to the satisfaction Loan set out in this Agreement, PFG will not make any Loan until PFG shall have received from Borrower, in form and substance reasonably satisfactory to PFG, such documents, and completion of each such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its good faith business judgment, materially negatively affect or be reasonably expected to materially negatively affect the collectability of the following conditions precedent (except those conditionsObligations, if anyPFG’s security interest in Borrower’s Collateral or the value thereof. Notwithstanding the foregoing, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of Borrower agrees to deliver to PFG each Project Loan Document will item required to be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender PFG under this Agreement as a condition precedent to any Loan. Borrower expressly agrees that a Loan made prior to the funding receipt by PFG of the Construction/Term Facility any such item shall not constitute a waiver by PFG of Borrower’s obligation to deliver such item, and the Revolving Facility shall have been delivered or received. A copy making of all such deliveries and other evidence any Loan in the absence of the closing a required item shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made in PFG’s sole discretion. Without limiting the foregoing, as conditions precedent to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP Loan, Borrower shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipprovide:
(i) Each duly executed original signatures of VF Borrower and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of DelawareGuarantor to this Agreement, the ownership Intellectual Property Security Agreement and related Collateral Agreements and Notices, share charges in respect of which is 99% shares in the Borrower, a deed of guarantee executed in favor of PFG by Agro Power Guarantor; and 1% debentures (incorporating fixed and floating charges) in favor of PFG executed by VF Guarantor;
(ii) a Certificate for Borrower and Guarantor signed by a Responsible Officer (in the case of VF DelawareBorrower) or 1% by VF Delaware a Person authorized to lawfully act on behalf of Guarantor (in the case of VF)Guarantor) in respect of obligations such as the Guaranty, appending copies of (A) its Constitutional Documents, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreementits register of members, (C) its register of charges, and (CD) has taken all necessary action to authorize the written resolutions or minutes of its board of directors authorizing the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it such Borrower is a party have been duly authorizedand authorizing the Responsible Officer(s), executed and delivered by VF Delaware certifying that such documents are true, correct and VF in full force and constitute effect on the legal, valid and binding obligations date of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.this Agreement;
(iii) Neither the execution, delivery or performance Any Control Agreements as required by VF Delaware or VF Section 8(b) of this Agreement or any Schedule, duly executed by Borrower and each relevant depositary institution in favor of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.PFG;
(iv) It is not an "investment company" or to the extent reasonably practicable, certified copies, dated as of a company "controlled" by an "investment company" within the meaning recent date, of the Investment Company Act of 1940Security Instrument searches, as amended.PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such Security Instruments either constitute Permitted Liens or have been or, in connection with the Loan, will be terminated or released;
(v) The representations the Representations, duly executed by Borrower on behalf of Borrower and warranties of VF Delaware or VF or any of their respective Affiliates in or each Guarantor;
(vi) the insurance policies and/or endorsements required pursuant to any Section 4.3;
(vii) payment of the Project payable Fees specified in Section 3 of this Schedule and Lender Expenses incurred in connection with the Loan;
(viii) any third party consents required in order for Borrower to enter into and perform the Loan Documents;
(ix) the Senior Subordination Agreement, in agreed form between PFG, PFG4 and the Senior Lender;
(x) subordination agreements in favor of PFG from holders of Indebtedness;
(xi) execution and delivery of the BVI Security Documents;
(xii) execution and delivery of the Cayman Security Documents;
(xiii) execution and delivery of the Hong Kong Security Documents;
(xiv) execution, delivery of all other Security Instruments contemplated under the Cayman Security Documents or Project Loan Documents are true and correct Hong Kong Security Documents; and
(xv) to the extent that the conditions to this Agreement have not been completed as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LPEffective Date, mutatis mutandis, as if fully set forth herein.
(e) The following representations a post-closing obligations letter in PFG’s customary form by which PFG waives or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and defers performance of this Agreementsuch conditions as PFG is willing to defer in its sole business discretion. Executed and Delivered as a Deed by ) Lender: BORQS Hong Kong Limited ) Acting by: Partners for Growth V, L.P. /s/ ▇▇▇ Sek ▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇ Sek ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Director Title: Manager, Partners for Growth V, LLC, Its General Partner in the presence of : Witness name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Witness occupation: CFO Section 3.4(d) – Fixtures, Etc. – None.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Loan and Security Agreement (Borqs Technologies, Inc.)
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make This Agreement shall become effective on the contributions described date in Section 3.2 are subject to the satisfaction of each of which the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP have been satisfied or Cogentrix LP, as appropriate):waived:
(a) The Project Credit Facilities and the Project Loan Documents this Agreement shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP Party, Administrative Agent, and a copy thereof delivered to Cogentrix LP as soon as available.Required Lenders;
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described representations and warranties in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties this Agreement shall be true and correct in all respectsmaterial respects on and as of the 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 Term Loan Agreement;
(c) after giving effect to this Agreement, no Default or Event of Default shall exist;
(d) Borrower shall have provided evidence reasonably satisfactory to Administrative Agent that, simultaneously with the effectiveness of this Agreement, the provisions of the Revolving Credit Agreement will have been amended or waived to the extent necessary to correspond to the amendments and waivers set forth in this Agreement and to provide for not less than $250 million of the Revolving Credit Facility Loans to be recharacterized as non-revolving term debt;
(e) Administrative Agent shall have received an officer’s certificate executed by a Responsible Officer of Borrower certifying resolutions of the board of directors of Borrower authorizing the transactions contemplated by this Agreement;
(f) Borrower shall have paid to Administrative Agent all expenses of Administrative Agent (including attorneys’ fees of counsel to Administrative Agent) incurred in connection with this Agreement and the other Loan Documents;
(g) Administrative Agent and Bank of America, N.A., as administrative agent under the Revolving Credit Agreement and as Collateral Agent, shall have entered into an amendment to, or an amendment and restatement of, the Intercreditor Agreement;
(h) Borrower shall have caused Collateral Agent to have “control” (as defined in the Uniform Commercial Code, as adopted in each applicable jurisdiction) in a manner satisfactory to Collateral Agent over all of Borrower’s and its Subsidiaries’ deposit accounts and investment property (other than deposit accounts specially and exclusively used for payroll, payroll taxes, and are hereby made other employee wage and benefit payments to Cogentrix GP or for the benefit of Borrower’s or its Subsidiaries’ salaried employees and Cogentrix LP by VF Delaware and VF as other accounts holding only Restricted Cash); provided that the foregoing shall not apply to deposit accounts held at SunTrust Bank not to exceed $10,000,000 at any time (which Borrower shall cause Collateral Agent to have “control” within ten (10) Business Days following the Fourth Amendment Effective Date the failure of which shall be an inducement to their making capital contributions to the Partnership:immediate Event of Default); and
(i) Each Administrative Agent shall have received, for the benefit of VF each Lender executing and VF Delaware delivering this Agreement to counsel to Administrative Agent by 12:00 noon (ANew York time) is a limited liability company duly organizedon January 16, validly existing 2008, an amendment fee equal to the product of (i) the amount of such Lender’s Loan on the effective date of, and in good standing under the laws of the State of Delawareafter giving effect to, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
times (ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects0.40%, and are hereby made all other fees and expenses payable to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and Administrative Agent in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of connection with this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation This Amendment shall become effective as of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to first date (the satisfaction of “Amendment Effective Date”) when each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):shall have been satisfied:
(a) The Project Credit Facilities and the Project Loan Documents Administrative Agent (or its counsel) shall have been approved by received from each party hereto (including the Management Committee and Required TLA/RC Lenders) either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Project Loan Documents will be executed by all parties thereto. An original executed copy Administrative Agent (which may include telecopy, portable document format (.pdf) or email transmission of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) All conditions to the closing no Default or Event of the Construction/Term Facility Default shall have occurred and be continuing or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required shall result from any extension of credit requested to be received by made on the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.Amendment Effective Date;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) the Administrative Agent shall have been received a certificate, dated the Amendment Effective Date and signed by a Responsible Officer of the Parent Borrower, confirming compliance with the conditions set forth in clause (b) of this Section 4.1 and that each of the representations and warranties made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties any Loan Party contained in Section 3.1 above shall be true and correct in all respects, on and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions of the Amendment Effective Date after giving effect to the Partnership:Amendment and to any extension of credit requested to be made on the Amendment Effective Date with the same effect as though such representations and warranties had been made on and as of such date;
(id) Each the Administrative Agent shall have received, for the benefit of VF each Term A Lender and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it Revolving Lender that is a party have been duly authorizedhereto on the Amendment Effective Date, executed an amendment fee in an amount equal to 0.05% of the amount of such Term A Lender’s and delivered by VF Delaware Revolving Lender’s outstanding Term A Loans and VF and constitute outstanding Revolving Commitments on the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.Amendment Effective Date; and
(iiie) Neither to the execution, delivery or performance by VF Delaware or VF of this Agreement or any of extent invoiced at least one (1) Business Day prior to the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitationAmendment Effective Date, the assignment of the Project Documents Administrative Agent shall have received all fees and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable amounts due and payable to it or its assets Affiliates on or business.
prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all of such Persons’ reasonable out‑of‑pocket expenses (ivincluding reasonable fees, charges and disbursements of counsel) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed required to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations reimbursed or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF paid by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing any Loan Party hereunder or under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessLoan Document.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described amendments set forth in Section 3.2 are 2 of this Amendment is subject to the full and complete satisfaction of each of the following conditions precedent (except those conditionssuch date of satisfaction, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
the “Fourth Amendment Effective Date”): (a) The Project Credit Facilities the execution and delivery of this Amendment by Borrower, the Guarantors, the Lenders and the Project Collateral Agent; (b)the representations and warranties in Section 4 of this Amendment being true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the date hereof and as of the Fourth Amendment Effective Date, except to 2 141565389 the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties are true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date); (c) no Default or Event of Default has occurred and is continuing (or would result after giving effect to the transactions contemplated by this Amendment and the other Loan Documents, the Equity Documents shall have been approved and the ABL Documents); (d) the receipt in cash by the Management Committee Secured Parties of the payment of all fees, costs and expenses incurred thereby on or prior to the date of this Amendment that are required to be reimbursed pursuant to Section 2.9 and Section 6.3 of the Facility Agreement or Section 6 of this Amendment and all other fees, costs and expenses incurred in connection with this Amendment (and the Project Loan Documents will transactions contemplated hereby) by the Secured Parties (including, in each case, all reasonable attorneys’ fees of the Secured Parties and any estimates of post-closing fees, costs and expenses (including all reasonable attorneys’ fees) expected to be executed incurred by all parties thereto. An original the Secured Parties in connection with this Amendment); (e) the receipt by the Collateral Agent and the Lenders of a fully executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described ABL Documents in Section 3.2 have been made) form and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof substance reasonably satisfactory to Cogentrix GP the Collateral Agent and Cogentrix LP shall have been provided to them the Lenders; (f) receipt by VF Delaware.
(d) The following representations or warranties shall be true the Collateral Agent and correct the Lenders of a certificate from an authorized officer of each Loan Party Obligor in all respects, form and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions substance satisfactory to the Partnership:
Collateral Agent and the Lenders: (i) Each attesting to the resolutions of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws such Loan Party Obligor’s board of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) directors or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the equivalent governing body authorizing its execution, delivery delivery, and performance of this Agreement Amendment, the Amended Facility Agreement, the other Loan Documents and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorizedABL Documents, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of in each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents case to which it is a party, nor compliance by it with (ii) authorizing specific officers of such Loan Party Obligor to execute the terms and provisions hereof or thereofsame, including, without limitation, the assignment of the Project Documents and Project Assets attesting to the Partnershipincumbency and signatures of such specific officers of such Loan Party Obligor, requires the consent or authorization (iii)attesting to copies of any other party (except such each Loan Party Obligor’s Organizational Documents, as have been duly obtained)amended, modified, or conflicts or will conflict supplemented to the date hereof, which Organizational Documents shall be (A) certified by an authorized officer of such Loan Party Obligor, and (B) with or result in respect to Organizational Documents that are charter documents, certified as of a breach or violation of its charter documents or by-laws or any of recent date (not more than thirty (30) days prior to the termsFourth Amendment Effective Date) by the appropriate governmental official, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" attesting to certificates of status with respect to each Loan Party Obligor, dated within the meaning ten (10) days of the Investment Company Act of 1940Fourth Amendment Effective Date, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant such certificates to any be issued by the appropriate officer of the Project Documents or Project jurisdiction of organization of such Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LPParty Obligor, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties which certificates shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) indicate that such Loan Party Obligor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreementsuch jurisdiction, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.3 141565389
Appears in 1 contract
Conditions. The obligation of Cogentrix GP This Amendment shall not be effective unless and Cogentrix LP until Borrower has delivered or caused to make the contributions described in Section 3.2 are subject be delivered to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):Agent:
(a) The Project Credit Facilities Counterparts of this Amendment and such related documentation as any Bank or its counsel shall determine in their reasonable discretion, in form and substance satisfactory to the Agent, duly executed and delivered by the Borrower, the Banks, and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP Agent, as soon as available.applicable;
(b) All conditions to Payment for the closing account of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that Banks of any amounts then due under the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.Credit Agreement;
(c) The contribution by VF Delaware contemplated by Section 3.1(aA certificate from the Borrower dated as of the Effective Date stating that (i) shall have been made to all representations, warranties, and covenants of the satisfaction Borrower set forth in the Credit Agreement, as amended hereby, each of Cogentrix GP the other Credit Documents, and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be this Amendment are true and correct in all respects, material respects and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement no Default has occurred and is continuing;
(d) Certified resolutions of the Borrower approving this Amendment and the Project Documents other documents executed in connection herewith;
(e) A certificate of the Borrower certifying, as of the Effective Date, the names and Project Loan Documents true signatures of persons authorized to which it is a party have been duly authorizedsign this Amendment on behalf of the Borrower;
(f) Appropriate evidence of regulatory applications, executed approvals and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their termspermits, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting those for which the rights of creditors generally.failure to obtain would not result in a Material Adverse Change;
(iiig) Neither No later than one hundred twenty (120) days after the executionEffective Date, delivery or performance by VF Delaware or VF of this Agreement or any a real estate MAI appraisal for at least [eighteen and one-half percent (18.5%)] of the Project Documents or Project Loan Documents value of all Property currently owned by Borrower prepared by an appraiser to which it is be selected by Agent on behalf of the Banks; provided however, that if such appraisal for any Property reflects a partyvalue of less than the Acquisition Cost of such Property, nor compliance by it with Lessee shall be permitted, at its sole option, to contribute additional real property to Borrower pursuant to an Acquisition up to the terms amount of the difference between the Acquisition Cost and provisions hereof or thereofthe appraised value of such Property; and
(h) An environmental review of all Property, including, without limitation:
i. A spreadsheet of all Property detailing any environmental claims, excluding Property in Michigan and certain Property subject to a ground lease whose term is about to expire,
ii. Review of ASTM database by an independent database provider on the assignment leased properties described in CLAUSE (i) above,
iii. Review of Guarantor's corporate environmental experience with all of the Project Documents sites described in CLAUSE (i) above and Project Assets to the Partnershipreport of that experience, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessand
iv. Guarantor's environmental management policy.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP Title endorsements to the Title Policy evidencing no negative impact on the Mortgages based on this Amendment and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessrelated document.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation This Amendment shall be effective as of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each Effective Date once all of the following conditions precedent (except those conditionshave been satisfied or delivered to Agent, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):each case in form and substance satisfactory to Agent:
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be this Amendment executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP Borrower, Guarantors, Agent and a copy thereof delivered to Cogentrix LP as soon as available.at least the Required Lenders;
(b) All conditions a replacement Revolving Note by Borrower payable to the order of each Revolving Lender requesting a replacement Revolving Note in the amount of each such requesting Revolving Lender’s portion of the Revolving Commitment (after giving effect to this Amendment), and Lenders agree to return to Borrower as soon as practicable after the Effective Date the executed originals of the Revolving Notes in effect prior to the effectiveness of this Amendment, or lost note affidavits reasonably acceptable to Borrower from the Lenders who cannot locate the executed originals of said promissory notes;
(c) an Officer’s Certificate from each of Borrower and each Guarantor certifying as to incumbency of officers, that since the date of the certificate delivered to Agent and the Lenders in connection with the closing of the Construction/Term Facility shall have occurred Credit Agreement or been satisfied in the case of the First Amendment to the Credit Agreement, as the case may be, no changes to its certificate of incorporation (other than evidence or equivalent thereof) and its bylaws (or equivalent thereof), except for Borrower’s certificate of incorporation and its bylaws which are attached to such Officer’s Certificate for Borrower, and that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries resolutions adopted in connection with the Project which are required closing of the Credit Agreement have not been amended, rescinded or revoked (other than with respect to be received by the Construction/Term Lender as a condition officer appointments made subsequent to the funding of Closing Date or the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made First Amendment to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Credit Agreement, in either case if applicable) and (C) has taken all necessary action to authorize the execution, delivery remain in full force and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.effect;
Appears in 1 contract
Sources: Credit Agreement (RigNet, Inc.)
Conditions. The obligation EXEMPTION granted to the OWNER and the COMPANY by the TOWN hereby is in consideration of Cogentrix GP the OWNER and Cogentrix LP the COMPANY’S commitments stated hereafter as follows:
1. To create one hundred (100) new, permanent full-time jobs within 24 months from the state incentive award under the Massachusetts Economic Development Incentive Program and to make create an additional eighty-one (81) new, permanent full-time jobs over a five year period from the contributions date of occupancy as outlined in the “Certified Project Application,” dated as of July 5, 2011 (“CERTIFIED PROJECT APPLICATION”) submitted to the TOWN by the COMPANY in connection with OWNER and the COMPANY’S request for the EXEMPTION, and hire residents of the TOWN as outlined in the WORK FORCE ANALYSIS AND JOB CREATION PLANS section of the CERTIFIED PROJECT APPLICATION. Such new jobs shall be in addition to existing jobs at the FACILITY, currently numbering two hundred thirty-three (233);
2. To invest approximately Thirty Million Dollars ($30,000,000.00) in tenant improvements, furniture, fixtures and new equipment at the FACILITY, as described in Section 3.2 are subject to the satisfaction CERTIFIED PROJECT APPLICATION which investments shall be placed in use by the date which is five years from the date of each initial occupancy of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LPCERTIFIED PROJECT;
3. To cooperate with the local Office of the Massachusetts Department of Employment and Training and other agencies, as appropriate):
(a) The Project Credit Facilities , in seeking to fill job vacancies with the COMPANY as they develop, and operate a job outreach program whereby Westford residents are made aware of job opportunities with the Project Loan Documents shall have been approved COMPANY, including advertising in the local newspapers encouraging such residents to apply for employment with the COMPANY any time advertisements are otherwise placed by the Management Committee COMPANY for employment at the FACILITY;
4. The OWNER shall cause its general contractor to maintain a list of qualified local contractors, vendors and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described suppliers interested in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries providing services in connection with construction of the Project which are required CERTIFIED PROJECT, and shall cause its general contractor to be received by inform such contractors, vendors and suppliers of opportunities to provide such services as such opportunities become available;
5. To submit annual reports on job creation, job retention and new investments at the Construction/Term Lender as a condition FACILITY to the funding of the Construction/Term Facility TOWN, and the Revolving Facility shall have been delivered or receivedEACC by September 30 of each year during the EXEMPTION PERIOD, on the form adopted by EACC for such purpose;
6. A copy of To pay all such deliveries and other evidence of real estate taxes owed the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made TOWN relating to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result FACILITY in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businesstimely fashion.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Tax Increment Financing Agreement
Conditions. The obligation of Cogentrix GP and Cogentrix LP ▇▇▇▇▇▇▇▇'s consent to make the contributions described in Section 3.2 are subject to the satisfaction of each of any Financing Transaction may be conditioned upon, among other things, the following conditions precedent and/or requirements (except those conditions, if any, and Tenant acknowledges that may be specifically waived the conditions in writing by Cogentrix GP or Cogentrix LP, as appropriateclauses (a) through (e) are reasonable given the context and terms and conditions of this Lease):
(a) The Project Credit Facilities and the Project Loan Documents lender shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Financial Institution;
(b) All conditions a Lease amendment shall be executed to reflect updated or additional lease provisions for the closing purpose of conforming this Lease to Landlord's then standard leasing terms, practices and policies; provided no such changes would result in any material adverse effect on Tenant's obligations, liabilities or rights under this Lease or under Law, and such terms have been and are included in substantially all similar leases or amendments entered into by Landlord at or around the time of the Construction/Term Facility shall have occurred proposed modification, or been satisfied (other than evidence that in the capital contributions described case of a newly adopted term, practice or policy, such terms will be included in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received future similar leases or amendments entered into by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.Landlord;
(c) The contribution the maximum loan proceeds secured by VF Delaware contemplated the encumbrance shall not be in excess of the greater of (i) seventy five percent (75%) of the then fair market value of the Improvements (or the as-completed value if the subject loan is being used to finance the cost of an Alteration) as determined by Section 3.1(aa third party appraisal reasonably approved by Landlord (which may be the Permitted Lender's appraisal if so approved by Landlord), or (ii) shall have been made the amount required to repay the satisfaction outstanding principal balance of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory the existing financing that encumbers the leasehold under a Permitted Encumbrance previously consented to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.Landlord;
(d) The following representations or warranties the loan secured by the encumbrance shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions have a payment term that provides for the full repayment of the loan prior to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws Expiration Date of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance then current Term of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.Lease; and
(e) The following representations or warranties Tenant shall be true and correct in all respects, and are hereby made have provided to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement Landlord pursuant to their making capital contributions to the Partnership:
Section 10.1.1: (i) Each the Financing Transaction term sheet, application or commitment or comparable summary of Cogentrix GP and Cogentrix LP (A) is a corporation duly organizedloan terms, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement a recent appraisal supporting the Financing Transaction, (iii) certified financial statements of Tenant for not less than the past two (2) years to the extent Tenant is in existence for two (2) years and Project Loan Documents has separate financial statements (or, in lieu thereof or in addition thereto, financial statements of any guarantor of Tenant's obligations under this Lease for not less than the past two (2) years), (iv) the draft and, to which it is a party have been duly authorizedthe extent available, executed final loan documents and delivered by Cogentrix GP (v) such other documents, information and Cogentrix LP and constitute materials relating to the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it Financing Transaction as Landlord may reasonably request in accordance with their terms, except as enforceability may be limited by general equitable principles the timing and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights conditions of creditors generallySection 10.1.1.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Lease Agreement
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make Bank's obligations under the contributions described in Section 3.2 Agreement, as hereby amended, are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities 1. Bank and the Project Loan Documents Borrowers shall have been approved executed and delivered this Amendment.
2. Borrowers shall have paid Bank an amendment fee in the amount of $25,000.00.
3. Borrowers shall have executed and delivered such mortgages or deeds of trust as are necessary, in Bank's discretion, to mortgage to Bank 100% of all of Borrowers' Oil and Gas Properties given value by Bank in the Borrowing Base as well as any interest of any Borrower in properties currently being developed either (i) through the joint venture agreement with Penn-Virginia Oil and Gas Corporation or (ii) with proceeds from Borrowers' recently completed subordinated debt issue.
4. Borrowers shall, or will from time to time, have executed such additional mortgages, deeds of trust, financing statement and such other documents as are deemed necessary by Bank in order to perfect a lien in favor of Bank in and to those Oil and Gas Properties necessary to achieve the percentages required by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availablecovenants set forth herein.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described 5. Each Borrower's representations and warranties set forth in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties B hereof shall be true and correct in all respectson and as of the date hereof, and are hereby made the date of any subsequent advance with the same effect as though such representation and warranty had been on and as of such date.
6. Each Borrower shall have delivered copies of any amendments to Cogentrix GP each such Borrower's Articles of Incorporation and/or Certificate of Incorporation and Cogentrix LP all amendments to each such Borrower's by VF Delaware and VF as an inducement to their making capital contributions laws occurring subsequent to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws date of the State Original Agreement accompanied by a certificate issued by the secretary or an assistant secretary of Delawarethe Borrowers, to the effect that each such copy is correct and complete or a certificate that no such amendments have occurred;
7. Each Borrower shall have delivered a current certificate of incumbency and signature of all of each Borrower's officers who are authorized to execute Loan Documents on behalf of such Borrower, executed by the secretary or an assistant secretary of such Borrower;
8. Each Borrower shall have delivered copies of corporate resolutions approving this Sixth Amendment, the ownership Replacement Note and any other documents required by Bank to be executed by each Borrower authorizing the transactions contemplated herein and therein, duly adopted by the board of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations directors of each of VF Delaware and VF enforceable against it in accordance with their termsthe Borrowers, except as enforceability may be limited accompanied by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any a certificate of the Project Documents respective secretary or Project Loan Documents to which it is a partyan assistant secretary of each Borrower, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except effect that such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent of the board of directors of each Borrower and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified, or revoked in any respect, and are in full force and effect as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully of such certificate;
9. Borrowers shall have satisfied all conditions set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement 10. As of the date hereof, and Project Loan Documents to which it is a party have been duly authorizedthe date of any subsequent Advance, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legalno Event of Default nor any event which, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms giving of notice or lapse of time, would constitute an Event of Default shall have occurred and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessbe continuing.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Credit Agreement (GMX Resources Inc)
Conditions. The (a) Buyer's obligation of Cogentrix GP to purchase the Property shall be subject to and Cogentrix LP contingent upon the satisfaction or waiver (which waiver shall be in writing except where failure to make the contributions described respond constitutes waiver as provided in Section 3.2 are subject to the satisfaction of each 2 above) by Buyer of the following conditions precedent precedent:
(except those conditionsi) Buyer's inspection and approval, within the Inspection Period, of all physical, environmental, economic and legal matters relating to the Property, pursuant to Section 2.3 above.
(ii) Buyer's written notification to Seller on or before December 5, 1997 of Buyer's receipt and approval of MAI appraisals of all of the Locations, performed on behalf of Buyer and at Buyer's expense, which result in an aggregate appraised fair market value of the Locations of not less than the Purchase Price.
(iii) The willingness of Title Company or some other reputable title insurer to issue its Texas standard owner's form policies of title insurance (collectively "Buyer's Title Policies"), insuring Buyer in the amount of the Purchase Price allocated to each Location as set forth on Exhibit B, respectively, that title to such Location is vested of record in Buyer on the Closing Date, subject only to the printed conditions and exceptions of such policy and such other exceptions as approved by Buyer during the Inspection Period; with extended coverage endorsements, if anyavailable, that may be specifically waived insuring over the general exceptions and/or exclusions otherwise contained in writing by Cogentrix GP or Cogentrix LP, as appropriate):such title policies.
(aiv) The Project Credit Facilities Satisfaction or waiver of each and every condition to closing to be satisfied or waived by Seller as set forth in that certain Agreement for Purchase and Sale of Real Property dated as of even date herewith by and between Metric Income Trust Series, Inc. and Buyer with respect to certain real property located in the states of California and Georgia as more particularly described therein (the "Companion Contract") and the Project Loan Documents shall have been approved by closing of the Management Committee and transactions contemplated therein concurrently with the Project Loan Documents will be executed by all parties thereto. An original executed copy closing of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availablethe transactions contemplated hereby.
(b) All conditions Notwithstanding anything in this Agreement to the closing contrary, Seller's obligation to sell the Property shall be subject to and contingent upon the satisfaction or waiver by Seller of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipconditions precedent:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.[Omitted Intentionally]
(ii) This Agreement and The willingness of Title Company to issue the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyBuyer's Title Policies.
(iii) Neither the execution, delivery Buyer's timely satisfaction or performance by VF Delaware or VF of this Agreement or any waiver of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party conditions set forth in Section 3.1(a)(i) through (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessiii) above.
(iv) It is not an Satisfaction or waiver of each and every condition to closing to be satisfied or waived by Buyer as set forth in that certain Agreement for Purchase and Sale of Real Property dated as of even date herewith by and between Metric Income Trust Series, Inc. and Buyer with respect to certain real property located in California and Georgia as more particularly described therein (the "investment company" or a company Companion Contract"controlled" by an "investment company" within ) and the meaning closing of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any transactions contemplated therein concurrently with the closing of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth hereintransactions contemplated hereby.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Metric Income Trust Series Inc)
Conditions. The obligation effectiveness of Cogentrix GP the amendment and Cogentrix LP restatement of the Existing Credit Agreement pursuant to make the contributions described in Section 3.2 are 3 of this Agreement shall be subject to the satisfaction of each (or waiver) of the following conditions precedent precedent:
(except those conditionsa) The Agent (or its counsel) shall have received from each of the Borrower, the Parent, and the Required Lenders under (and as defined in) the Existing Credit Agreement either a counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Agent (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) The Agent (or its counsel) shall have received from each Subsidiary, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LPis a Subsidiary Loan Party as of the Restatement Effective Date, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and is not already a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions Guarantor, a supplement to the closing Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPPerson.
(c) The contribution by VF Delaware contemplated by Section 3.1(aAgent shall have received a favorable written opinion (addressed to the Agent and the Lenders and dated the Restatement Effective Date) of each of (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Borrower, substantially in the form of Exhibit B-1 hereto, and (ii) Shearman & Sterling LLP, counsel to the Loan Parties, 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 (as defined in the Existing Credit Agreement) shall reasonably request. The Agent shall also have been made received reliance letters addressed to the satisfaction of Cogentrix GP Agent and Cogentrix LP the Lenders from local counsel in Luxembourg, Scotland and evidence thereof Brazil, in form and substance reasonably satisfactory to Cogentrix GP the Agent, to the effect that the Agent and Cogentrix LP shall have been provided the Lenders are entitled to them rely on the opinions delivered by VF Delawaresuch counsel in connection with the amendment and restatement of the Revolving Credit Agreement as of November 7, 2008. The Parent and the Borrower hereby request such counsel to deliver such opinions and reliance letters.
(d) The following Agent shall have received such documents and certificates as the Agent 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 or and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all respectsmaterial respects as of the Restatement Effective Date, no Default shall have occurred and are hereby made to Cogentrix GP be continuing as of the Restatement Effective Date and Cogentrix LP the Agent shall have received a certificate, dated the Restatement Effective Date and signed by VF Delaware the President, the Chief Executive Officer, a Vice President or a Financial Officer of each of the Parent and VF as an inducement to their making capital contributions the Borrower, confirming the foregoing.
(f) The Agent shall have received all fees and other amounts due and payable on or prior to the Partnership: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.
(g) The Collateral Requirement shall have been satisfied. The Agent shall have received the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Schedule (updated as provided in the Collateral Agreement) and copies of the financing 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 Agent shall have received evidence that the insurance required by the Loan Documents is in effect.
(i) Each of VF The Lenders shall have received all documentation and VF Delaware (A) is a limited liability company duly organizedother information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, validly existing and in good standing under including the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a partyUSA PATRIOT Act.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(vj) The representations Revolving Credit Amendment and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct Restatement Agreement dated as of the date hereof relating to the Revolving Credit 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 hereby deemed effective and that any payments to be made to Cogentrix GP the Borrower thereunder upon the effectiveness thereof are being made substantially concurrently with the effectiveness of this Agreement and Cogentrix LP(iv) the Agent shall have received a certificate, mutatis mutandisdated the Restatement Effective Date and signed by the President, as if fully set forth herein.
the Chief Executive Officer, a Vice President or a Financial 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 (ei), (ii) and (iii) of this paragraph, and any and all documents and agreements relating thereto, have been delivered to the Agent. The following representations or warranties Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be true conclusive and correct in all respectsbinding. Notwithstanding the foregoing, the amendment and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws restatement of the State Existing Credit Agreement as contemplated hereby shall not become effective unless each of Delawarethe foregoing conditions is satisfied (or waived) at or prior to 5:00 p.m., New York City time, on September 16, 2009 (B) has full power and authority and and, in the legal right event such conditions are not so satisfied or waived, the Existing Credit Agreement shall remain in effect without giving effect to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance any provisions of this Agreement).
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Term Loan Amendment and Restatement Agreement (American Axle & Manufacturing Holdings Inc)
Conditions. The obligation of Cogentrix GP Notwithstanding the foregoing, this Amendment shall not become effective unless and Cogentrix LP to make until (x) this Amendment has been approved in writing by the contributions described in Section 3.2 are subject to Borrowers, the satisfaction of Agent and the Banks; and (y) the Borrowers shall have delivered each of the following conditions precedent (except those conditionsto the Agent, if anyin form and substance satisfactory to the Agent and the Banks:
a. Resolutions of the Board of Directors of each Borrower and each Obligated Party certified by its Secretary or an Assistant Secretary which authorize its execution, that may be specifically waived in writing by Cogentrix GP delivery, and performance of the Amendment and the New CP Notes or Cogentrix LPthe Guaranty, as appropriate):applicable;
b. A certificate of incumbency for each Borrower and each Obligated Party certified by its Secretary or an Assistant Secretary certifying the name of each of its officers (ai) The Project Credit Facilities who is authorized to sign the Amendment and the Project Loan Documents shall have been approved by New CP Notes to which it is or is to be a party (including the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy certificates contemplated herein) together with specimen signatures of each Project Loan Document will be delivered to Cogentrix GP such officer and a copy thereof delivered to Cogentrix LP (ii) who will, until replaced by other officers duly authorized for that purpose, act as soon as available.
(b) All conditions to its representative for the closing purposes of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) signing documents and all governmental consents, approvals, permits and licenses giving notices and other deliveries communications in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of DelawareAmendment, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Credit Agreement and the Project Documents transactions contemplated hereby and Project Loan Documents thereby;
c. The certificate of incorporation of each Borrower and each Obligated Party certified by the Secretary of State of the state of its incorporation and dated a current date;
d. The bylaws of each Borrower and each Obligated Party certified by its Secretary or an Assistant Secretary;
e. Certificates of the appropriate government officials of the state of incorporation of each Borrower and each Obligated Party as to which it their respective existence, authority to do business and good standing, as applicable, in such states, each dated a current date;
f. The New CP Notes executed by each Borrower;
g. A favorable opinion of legal counsel to Borrowers and the Obligated Parties as to such matters as the Bank may reasonably request;
h. The Acknowledgment of Guarantors attached hereto, executed by each party to the Guaranty;
i. A Subsidiary Joinder Agreement, in the form attached hereto as Exhibit E, executed by any Regular Subsidiary of either Borrower that is a partynot currently party to the Guaranty.
(ii) This Agreement j. Payment to the Agent of a fee pursuant to the fee letter between the Borrowers and the Project Documents and Project Loan Documents Agent;
k. Payment to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any Agent of the Project Documents or Project Loan Documents $125,000 facility fee for the CP Commitment pursuant to which it is a party, nor compliance Section 3.10(ii);
l. Payment of all other fees and expenses payable by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets Borrowers pursuant to the Partnership, requires Credit Agreement as amended hereby; and
m. Such other documents as the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it Agent or its assets or businesscounsel may reasonably request.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Credit Agreement (Nelnet Inc)
Conditions. The obligation a) Subtenant shall define the planting area through the use of Cogentrix GP temporary markings and Cogentrix LP is not permitted to make install any permanent fencing or boundary marking. DRAFT
b) Subtenant shall maintain the contributions described Leased Premises during the term of the Lease in Section 3.2 are subject a safe, secured condition, free from all trash, litter, weeds, and tall grass, and shall comply fully with all laws, including codes and ordinances of the Town of Litchfield, applicable to the satisfaction Leased Premises.
c) Subtenant shall have the non-exclusive right to maintain and operate the Leased Premises. Whenever possible, the Sublandlord shall provide advanced notice of each of any work on or access to the following conditions precedent (except those conditionsLeased Premises.
d) Subtenant covenants that it shall at all times have all necessary permits, approvals, and entitlements, if any, for all uses. Subtenant shall not do or allow anything in the Leased Premises that may could increase Sublandlord's fire, property, or liability insurance rates or cause any of Sublandlord's insurance to be specifically waived adversely affected, or that would be considered extra-hazardous by insurance companies.
e) Subtenant shall have the town insurance rider cover general liability of the Leased Premises and shall name Sublandlord as an additional insured. Subtenant shall deliver a certificate of all such insurance concurrently with execution of this Lease and at least annually thereafter. Subtenant shall give Sublandlord immediate notice in case of fire, theft, or accident on the Leased Premises.
f) Subtenant shall assume liability and be liable for any incident or occurrence upon the Leased Premises.
g) Subtenant shall not assign this Lease or sublet all or any part of the Leased Premises without prior written consent of Sublandlord.
h) Subtenant shall assume full responsibility for the condition of the Leased Premises upon execution of this Lease.
i) Rental payment made pursuant to this Lease shall be paid to the Sublandlord at its office, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Highway, Litchfield, NH 03052 or to an authorized agent or agents if directed in writing by Cogentrix GP ▇▇▇▇▇▇▇▇▇▇▇;
j) Subtenant shall permit Sublandlord or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities Sublandlord’s employees and authorized agents to enter the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy Leased Premises at any time for purposes of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing inspection and in good standing under the laws event of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) an emergency or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.exigent circumstances. DRAFT
Appears in 1 contract
Sources: Sublease Agreement
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may It shall be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding effectiveness of this Assumption Agreement that on or before the Closing Date, (i) the Borrower shall have paid the Noteholder all payments under the Loan Documents which shall have become due and payable as of the Construction/Term Facility Closing Date, (ii) the Assumptor shall have deposited such sums with the Notcholder to comply with the impound and reserve funds provisions of the Loan Documents, including, but not limited to, Section 3.5 of the Security Instrument and the Revolving Facility Replacement Reserve and Security Agreement, (iii) fee simple title to the Property shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided conveyed by Borrower to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respectsAssumptor, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofconveyance instrument recorded with the land records recording officer of Philadelphia County, includingPennsylvania, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within all taxes due and payable for the meaning Property must be paid current as of the Investment Company Act of 1940Closing Date, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed Assumptor shall cause to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions delivered to the Partnership:
(i) Each Noteholder an opinion of Cogentrix GP counsel, satisfactory to the Noteholder as to form, substance and Cogentrix LP (A) is a corporation duly organizedrendering attorney, validly existing opining to the validity and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance enforceability of this Agreement.
(ii) This Assumption Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of and any other party agreement executed in connection with the transactions contemplated hereby, the authority of the Assumptor and Substitute Indemnitor and any constituents of the Assumptor and Substitute Indemnitor, to execute and deliver this Assumption Agreement and perform their obligations under the Note and other Loan Documents, and such other matters as reasonably requested by the Noteholder, (except vi) Assumptor and Borrower shall cause to be delivered to Noteholder, at Borrower's and Assumptor's expense, a lender's title policy, or an endorsement to an existing lender's policy, insuring the Security Instrument as modified by this Assumption Agreement as a valid first lien on the Property, naming the Noteholder as the insured thereunder, and naming the Assumptor as owner of the Property, which policy shall insure that, as of the date of the recording of this Assumption Agreement, the Property shall not be subject to any additional exceptions or liens other than those conditions in the original title policy insuring the lien of the Security Instrument and delivered in connection with the Security Instrument, (vii) Assumptor shall obtain, and provide Noteholder with proof thereof satisfactory to Noteholder, insurance for the Property which satisfies the requirements of the Security Instrument and Assumptor shall have paid one year's premium in advance on such insurance, (viii) Assumptor shall deliver to Noteholder such other documents as Noteholder shall reasonably request such as have been duly obtained)new financing statements or amendments to existing financing statements. Noteholder, or conflicts or will conflict with or result at any time, may in a breach or violation its sole discretion and in writing, waive the requirements of its charter documents or bylaws or any this section and upon such waiver, this Assumption Agreement shall be effective, as Noteholder's election, as of the terms, conditions Closing Date or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning as of the Investment Company Act date of 1940, as amendedsuch writing.
Appears in 1 contract
Sources: Assignment, Assumption and Consent to Assumption Agreement (Cedar Income Fund LTD /Md/)
Conditions. The obligation of Cogentrix GP This Agreement and Cogentrix LP to make the contributions described in Section 3.2 are subject to Amended Credit Agreement shall become effective on the satisfaction of each date (the “First Amendment Effective Date”) on which all of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP have been satisfied or Cogentrix LP, as appropriate):waived:
(a) The Project Credit Facilities the Administrative Agent shall have received this Agreement, duly executed and delivered by a duly authorized officer of each of (A) the Borrower, (B) the Administrative Agent, (C) the Issuing Lenders, (D) the New Revolving Lenders (which, in the case of this clause (D), may take the form of the Revolving ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇) and (E) the Term Lenders party hereto (it being understood that, immediately after giving effect to the New Revolving Facility and the Project Loan Documents shall have been approved by New Revolving Facility Increase, the Management Committee New Revolving Lenders and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Term Lenders party hereto shall constitute the Required Lenders);
(b) All conditions the Borrower shall have paid, or caused to have been paid, to the closing of First Amendment Arrangers, the Construction/Term Facility shall have occurred or been satisfied (other than evidence that Administrative Agent and the capital contributions described in Section 3.2 have been made) and New Revolving Lenders, as applicable, all governmental consents, approvals, permits and licenses fees and other deliveries in connection with amounts due and payable on or prior to the Project which are date hereof, including, without limitation, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be received reimbursed or paid by the Construction/Term Lender any Loan Party hereunder, under any Loan Document or as a condition otherwise mutually agreed prior to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.First Amendment Effective Date;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP representations and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (Borrower set forth in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Amended Credit Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it Loan Party in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any each of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms shall be true and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party correct in all material respects (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The for representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents that are true already qualified by materiality, which representations and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respectsrespects after giving effect to such qualification) on and as of the First Amendment Effective Date; provided that any representation and warranty that expressly relates to a given date shall be true and correct in all material respects as of such given date; provided, further, that the representations and warranties contained in Section 4.04(a) of the Amended Credit Agreement shall be deemed to refer to the most recent annual and quarterly financial statements required to be delivered pursuant to Section 6.01 of the Amended Credit Agreement;
(d) no Default shall have occurred and be continuing;
(e) the Administrative Agent shall have received a certificate, dated the First Amendment Effective Date and signed by a Responsible Officer of the Borrower, confirming compliance with the conditions set forth in clauses (c) and (d) of this Section 3;
(f) the Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Issuing Lenders and the Lenders and dated as of the First Amendment Effective Date) of Dechert LLP, which shall be in form reasonably satisfactory to the Administrative Agent, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions covering such other matters relating to the Partnership:Loan Parties (other than Cornell Real Estate Holdings, LLC), this Agreement, the Amended Credit Agreement or the transactions contemplated hereby or thereby as the Administrative Agent shall reasonably request (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders, the Issuing Lenders and the Administrative Agent);
(g) the Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to incumbency, the organization, existence and good standing of the Borrower and each other Loan Party and the authorization of the transactions contemplated by this Agreement all in form and substance reasonably satisfactory to the Administrative Agent and its counsel;
(h) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and to the extent requested by the Administrative Agent, any Issuing Lender or any Lender, the Borrower shall deliver to the Administrative Agent, such Issuing Lender and such Lender, as applicable, a Beneficial Ownership Certification at least three Business Days prior to the First Amendment Effective Date;
(i) Each of Cogentrix GP the Existing Revolving Commitments shall have been replaced and Cogentrix LP refinanced with the New Revolving Commitments and the Existing Revolving Loans shall have been repaid (Atogether with accrued interest thereon) is a corporation duly organized, validly existing and in good standing under the laws accordance with Section 2.05(c) of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Amended Credit Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.;
(iij) This Agreement and Project Loan Documents to which it is the Administrative Agent shall have received the results of a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute recent lien search in each of the legal, valid and binding obligations jurisdictions of organization of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their termsthe Loan Parties, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting reasonably satisfactory to the rights of creditors generally.Administrative Agent;
(iiik) Neither the executionAdministrative Agent shall have received from the Borrower, delivery or performance by Cogentrix GP for the payment to the Lenders and Cogentrix LP the Issuing Lenders, as applicable, all accrued and unpaid interest on the Loans, commitment fees, participation fees and fronting fees, in each case, to, but excluding, the First Amendment Effective Date;
(l) the Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower substantially in the form of Exhibit C to this Agreement, nor compliance ; and
(m) to the extent reasonably requested by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws Administrative Agent or any of Lender at least seven Business Days prior to the termsFirst Amendment Effective Date, conditions or provisions of any Requirement of Law the Borrower shall have provided to the Administrative Agent and such Lender the documentation and other information so requested in connection with applicable “know your customer" and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, at least three Business Days prior to it or its assets or businessthe First Amendment Effective Date.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Conditions. 4.1 The obligation agreements of Cogentrix GP and Cogentrix LP to make the contributions described Lender contained in Section 3.2 are Clause 3.1 of this Second Supplemental Agreement shall all be expressly subject to the satisfaction condition that the Lender shall have received in form and substance satisfactory to the Lender and its legal advisers on or before the date of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):this Second Supplemental Agreement:
(a) The Project Credit Facilities and evidence that the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy persons executing this Second Supplemental Agreement on behalf of each Project Loan Document will be delivered Borrower are duly authorised to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.execute the same on behalf of such Borrower;
(b) All conditions to a certificate from an officer of each Additional Owner confirming the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy names of all such deliveries the directors and other evidence Shareholders of the closing shall be provided to Cogentrix GP that Additional Owner and Cogentrix LP.having attached thereto true and complete copies of its incorporation and constitutional documents;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws complete copies of the State resolutions passed at separate meetings of Delawareall the directors and shareholders of Farat, the ownership of which is 99% by Agro Power New Owner and 1% by VF (each Additional Owner authorising and approving the execution of, in the case of VF Delaware) or 1% by VF Delaware (Farat and the New Owner the Mortgage Addendum and in the case of VF), (B) has full power and authority and each Additional Owner the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Additional Finance Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium any other document or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents action to which it is or is to be a party, nor compliance party and authorising its directors or other representatives to execute the same on its behalf;
(d) the original of any power of attorney issued by it with the terms and provisions hereof or thereof, including, without limitationFarat, the assignment of the Project Documents New Owner and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or each Additional Owner pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.such resolutions aforesaid;
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnershipevidence that each Additional Ship is:
(i) Each registered in the ownership of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing the relevant Additional Owner under the laws and flag of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.Malta; and
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it insured in accordance with their termsthe relevant provisions of the Additional Deed of Covenant relative to that Additional Ship and all requirements thereof in respect of such insurance have been fulfilled; and
(f) the Additional Finance Documents and the Mortgage Addenda, except as enforceability may be limited duly executed by general equitable principles and by applicable bankruptcythe Additional Owners or, insolvencyin the case of each Mortgage Addendum, reorganization, moratorium Farat or similar the New Owner together with evidence that:
(i) each Additional Mortgage has been registered against the relevant Additional Ship with first priority in accordance with the laws affecting of Malta;
(ii) each Mortgage Addendum in connection with the rights relevant Original Ship has been duly registered in accordance with the laws of creditors generally.Malta;
(iii) Neither the executionall notices required to be given under each Additional Deed of Covenant, delivery or performance by Cogentrix GP each Additional General Assignment and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as each Additional Charterparty Assignment have been duly obtained)given and acknowledged (other than in the case of a Charterparty Assignment in which case the Borrower or, or conflicts or will conflict with or result as the case may be, the Owner which is a party thereto shall procure that the Lender receives the relevant acknowledgement only if an Event of Default has occurred) in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.manner therein provided; and
(iv) It save for the charges created by or pursuant to the Additional Mortgages, the Additional Deeds of Covenant, the Additional General Assignments and the Additional Charterparty Assignments there is no lien, charge or encumbrance of any kind whatsoever on either Additional Ship or her Earnings, Insurances or Requisition Compensation.
(g) a certified true copy of any Approved Charter entered into in respect of either Additional Ship;
(h) the original of any mandates or other documents required in connection with the opening or operation of the Additional Earnings Accounts and the Deposit Account;
(i) evidence that the applicable Minimum Deposit is standing to the credit of the Deposit Account;
(j) documents establishing that each Additional Ship is managed by the Approved Manager;
(k) a letter of undertaking executed by the Approved Manager in favour of the Lender in the terms required by the Lender agreeing certain matters in relation to the management of each Additional Ship and subordinating the rights of the Approved Manager against that Additional Ship and the Additional Owner owning that Additional Ship to the rights of the Lender under the Finance Documents;
(1) copies of ISM DOC and SMC and the International Ship Security Certificate under the ISPS Code in respect of each Additional Ship;
(m) each Additional Ship maintains the highest available class with such first-class classification society which is a member of the IACS as the Lender may approve free of all recommendations and conditions of such classification society;
(n) evidence that each Additional Owner is a direct or indirect subsidiary of the Corporate Guarantor;
(o) certified copies of all documents (with a certified translation if an original is not an "investment company" in English) evidencing any other necessary action, approvals or a company "controlled" by an "investment company" within consents with respect to this Second Supplemental Agreement and the meaning Additional Finance Documents (including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the Lender deems appropriate;
(p) such legal opinions as the Lender may require in respect of the Investment Company Act matters contained in this Second Supplemental Agreement and the Additional Finance Documents and the Mortgage Addenda; and
(q) evidence that the agent referred to in Clause 9.4 has accepted its appointment as agent for service of 1940, as amendedprocess under this Second Supplemental Agreement and the Additional Finance Documents.
Appears in 1 contract
Sources: Loan Agreement (DryShips Inc.)
Conditions. 3.1 The obligation Loan is provided on the following conditions: -
3.1.1 The Facility is repaid in full by the Borrower in accordance with clause 6;
3.1.2 The Borrower shall not cause or permit the Facility (or any part of Cogentrix GP it) to be used for any purpose other than for the provision and Cogentrix LP to make delivery of essential supplies in accordance with the contributions described Authorised Purpose, for the avoidance of doubt the Facility shall not be used in Section 3.2 whole or in part toward paying salaries;
3.1.3 The Borrower shall ensure that receipts incurred in securing the Authorised Purpose are subject to kept for seven years from the satisfaction date of each this agreement and then securely destroyed;
3.1.4 The Borrower shall ensure open book accounting of the following conditions precedent Facility and shall provide such details as the Lender shall reasonably require in order to audit the use the Facility. Such details shall be provided within five working days of a request by the Lender;
3.1.5 The Borrower shall ensure that they have in place adequate vehicle insurance provision in connection with the delivery of the Authorised Purpose;
3.1.6 The Borrower shall not cause or permit more that £200 (except those conditions, if any, that may TWO HUNDRED POUNDS) to be specifically waived allocated per week to any individual household unless otherwise agreed in writing by Cogentrix GP or Cogentrix LP, as appropriate):the Lender;
3.1.7 The Borrower may use the Facility to purchase goods for individual households provided that in providing such a service they must secure compliance with this agreement together with the following: -
(a) The Project Credit Facilities Persons MUST be informed prior to agreeing to complete shopping on their behalf that their contact and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents household details will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availableshared with the Borrower.
(b) All conditions to the closing Persons MUST agree that their contact details, shopping request and details of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that delivery will be retained and used for the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding reclamation of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPmonies spent on their shopping.
(c) Persons MUST be informed of the existence of this agreement and provision made by the Borrower to ensure that any part of the Facility that is loaned to a person by the Borrower is recoverable by the Council after the Repayment Demand
3.1.8 The contribution by VF Delaware contemplated by Section 3.1(a) Borrower shall have been made use best endeavours to recover the satisfaction sums spent on the purchase of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delawareessential items from persons.
(d) 3.1.9 The following representations or warranties Borrower shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP use any sums recovered by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or them pursuant to any of clause 5.1.8 to re- circulate those funds for the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.Authorised Purpose
Appears in 1 contract
Sources: Loan Agreement
Conditions. The Commitments, including the obligation of Cogentrix GP the Investors to fund or cause the funding of the Commitments, shall be subject to (i) the valid execution and Cogentrix LP delivery of the Merger Agreement by the Company; (ii) the satisfaction in full, or waiver by Parent, in writing of each of the conditions to make Parent’s obligations to consummate the contributions described Transaction set forth in Section 3.2 7.1 and Section 7.2 of the Merger Agreement (other than those conditions that by their terms or nature are to be satisfied at the Closing provided, that those other conditions are satisfied at the Closing); (iii) the Debt Financing (or any Alternative Debt Financing) (A) having been funded in full or (B) being (as affirmed in writing by the agent therefor) funded in full subject only to the satisfaction of each of those conditions that by their nature are to be satisfied at the following conditions precedent Closing (except those conditions, if anyprovided, that may be specifically waived in writing by Cogentrix GP or Cogentrix LPthose conditions are satisfied at the Closing), as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection substantially simultaneously with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and Equity Financing; (iv) the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence substantially concurrent consummation of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it Transaction in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any terms of the Project Documents or Project Loan Documents Merger Agreement (including as a result of the granting of specific performance to which it is cause the Closing of the Transaction by a party, nor compliance by it court of competent jurisdiction in accordance with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtainedMerger Agreement), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
; (v) The representations the prior or substantially concurrent funding in full by each of Permira VIII - 1 SCSp, Permira VIII - 2 SCSp, Permira VIII AIV LP1 L.P., Permira VIII AIV LP2 L.P., Permira VIII CIS SCSp, Permira VIII CIS 2 SCSp, PILI 1 Portfolio SCSp, PILI 2 Portfolio SCSp, PILI 4 Portoflio SCSp, Permira Investment Capital LP, Permira Investment Capital II LP and warranties of VF Delaware or VF or any Permira Investment Capital III LP (the “Co-Lead Investors”) under their equity commitment letter (the “Co-Lead Equity Commitment Letter”) of their respective Affiliates in Commitments (as defined therein and as may be reduced or assigned pursuant to any of the Project Documents or Project Loan Documents are true and correct thereto), dated as of the date hereof hereof, between each such Co-Lead Investor and are hereby deemed Parent; and (vi) the prior or substantially concurrent contribution by each of the Reinvestment Stockholders that has entered into a Support Agreement of all of such Reinvestment Stockholder’s Rollover Shares to be made to Cogentrix GP and Cogentrix LPParent (or any direct or indirect parent entity thereof), mutatis mutandisin each case, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct specified in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this such Reinvestment Stockholder’s Support Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make any other conditions set forth herein or required by Lender, the contributions described in Section 3.2 following are subject conditions precedent that must be satisfied prior to the satisfaction of each closing of the following conditions precedent Transfer and Assumption (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriatethe “Closing”):
(a) The Project Credit Facilities execution, acknowledgment, delivery and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed recordation of this Agreement by all of the parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availableconcurrently with the Closing.
(b) All conditions The execution, delivery and recordation or filing, as applicable, of one or more new financing statements, or amendments to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are existing financing statements as required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPat Closing.
(c) The contribution Buyer’s delivery to Lender of satisfactory evidence that all insurance over the Property required by VF Delaware contemplated by Section 3.1(athe Loan Documents (the “Required Insurance”) shall have been made to is in full force and effect as of the satisfaction of Cogentrix GP Closing, with all required premiums paid, and Cogentrix LP and evidence thereof reasonably contains a mortgagee’s clause (the “Mortgagee’s Clause”) satisfactory to Cogentrix GP Lender in favor of Lender and Cogentrix LP shall have been provided to them by VF Delawareits successors and/or assigns, c/o Midland Loan Services, Master Servicer, 1▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Suite 300, Overland Park, Kansas 66210; re: Loan Number 030311707.
(d) The following representations or warranties shall be true Buyer’s delivery to Lender of satisfactory evidence that Borrower and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions Principal have engaged New York agent for service of process pursuant to the PartnershipLoan Agreement.
(e) Lender’s receipt of satisfactory Title Endorsements (hereinafter defined).
(f) The full release and reconveyance of any liens or monetary encumbrances against the Property (other than the liens in favor of Lender created pursuant to the Loan Documents and the liens for real property taxes and/or assessments for 2017 and subsequent years not yet due and payable).
(g) Buyer’s and Seller’s execution and delivery to Lender of the Settlement Statement (hereinafter defined) and Lender’s receipt of all of the Required Payments (hereinafter defined).
(h) Lender’s receipt of the following legal opinions from counsel for Buyer and Principal, each in form and substance satisfactory to Lender:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organizedorganization, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, enforceability (and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.such other matters as Lender may reasonably require);
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.authority-to-file; and
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bynon-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessdissolution.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each Lender’s receipt of Cogentrix GP and Cogentrix LP (A) is a corporation duly organizedan IRS W9 form from Buyer, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this AgreementSeller, and (C) any of their affiliates for which Lender has taken all necessary action to authorize the execution, delivery and performance of this Agreementrequested an IRS W-9 form.
(iij) This Termination of the DACA and CMA and execution by Borrower and delivery to Lender of a new Cash Management Agreement (the “New CMA”) in form and Project Loan Documents to which it is a party have been duly authorizedsubstance approved by Lender and PNC Bank, executed and delivered by Cogentrix GP and Cogentrix LP and constitute National Association, as the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting deposit bank under the rights of creditors generallyNew CMA.
(iiik) Neither Execution by Borrower and Manager, and delivery to Lender of a new Assignment and Subordination of Management Agreement (the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with “New Manager Consent”) in substance identical to the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessManager Consent.
(ivl) It is not an "investment company" or Execution by Principal and delivery to Lender of a company "controlled" Guaranty of Recourse Obligations in substance identical to the existing Guaranty.
(m) Execution by an "investment company" within Borrower of a new Closing Certificate in substance identical to the meaning existing Closing Certificate.
(n) Execution by Buyer and Manager and delivery to Lender of the Investment Company Act New Property Management Agreement containing a 30-day notice to terminate provision and otherwise in form and substance satisfactory to Lender.
(o) Execution by Seller and delivery to Lender of 1940, as amendeda termination of the property management agreement entered into by Seller and Manager.
Appears in 1 contract
Sources: Modification, Consent and Assumption Agreement With Release (Medalist Diversified REIT, Inc.)
Conditions. 16.1 Condition to Tenant's Obligations The obligation of Cogentrix GP obligations, liabilities and Cogentrix LP to make the contributions described in Section 3.2 are subject requirements imposed upon TENANT pursuant to the satisfaction terms of each of this Agreement are conditioned upon the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):having been first fully and finally fulfilled:
(a) The Project Credit Facilities and the Project Loan Documents CITY shall have provided satisfactory evidence to TENANT that this Agreement has been approved duly executed, authorized and delivered and is enforceable against CITY in accordance with its terms, and, if requested by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will TENANT, CITY shall have caused a legal opinion to be delivered to Cogentrix GP TENANT from its City Attorney acceptable to TENANT in which the City Attorney opines that this Agreement has been duly executed, authorized and a copy thereof delivered to Cogentrix LP as soon as availableby CITY and is enforceable against CITY in accordance with its terms.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility The Amphitheater shall have been delivered or received. A copy constructed in accordance with its plans and specifications and otherwise in the manner contemplated by the Development Agreement and a Certificate of all such deliveries and other evidence of Occupancy shall have been issued with respect to the closing shall be provided to Cogentrix GP and Cogentrix LPAmphitheater.
(c) The contribution CITY shall not execute or deliver the Ground Lease or the Lease Purchase Agreement, unless the following shall have first occurred:
(i) A Mutual Recognition Agreement as originally executed and acknowledged by VF Delaware an authorized officer of WAAC has been delivered to TENANT pursuant to which, among other things, WAAC (x) agrees to recognize the rights of TENANT under this Agreement and to be bound by all of the terms, conditions, provisions and agreements contained in this Agreement should WAAC acquire a possessory interest in and to the Amphitheater for any reason during the term of this Agreement and (y) warrants and represents to TENANT that it owns a valid leasehold estate in and to the Property and Amphitheater burdened only by the liens created by the Deed of Trust and the subleasehold estate created pursuant to the Ground Lease.
(ii) A Mutual Recognition Agreement fully executed and acknowledged by an authorized officer of Trustee has been delivered to TENANT pursuant to which, among other things, Trustee (x) agrees to recognize the rights of TENANT under this Agreement and to be bound by all of the terms, conditions, provisions and agreements contained in this Agreement should Trustee acquire a possessory interest in and to the Amphitheater for any reason during the term of this Agreement and (y) warrants and represents to TENANT that it owns a valid and first lien on WAAC's leasehold estate in and to the Amphitheater.
(iii) A Memorandum of Lease Agreement as originally executed and acknowledged by an authorized officer of CITY as contemplated by the provisions of Section 3.1(a17.11 of this Agreement.
(iv) A title insurer reasonably acceptable to TENANT which is authorized to issue title policies in the State of North Carolina shall have been made issued to TENANT a policy of title insurance insuring TENANT as the satisfaction owner of Cogentrix GP a valid leasehold estate created pursuant to this Agreement subject to no liens, encumbrances, or prior leasehold estates which are not acceptable to TENANT and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them in a coverage amount deemed acceptable by VF DelawareTENANT.
(d) The following All the representations or and warranties made by CITY pursuant to the terms of this Agreement shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF material respects as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State commencement date of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance term of this Agreement and all of the Project Documents covenants and Project Loan Documents agreements contained in this Agreement which are required to which it is a partybe fulfilled as of the commencement date of the term of this Agreement shall have been fulfilled in all material respects.
16.2 Condition of City's Obligations The obligations, liabilities and requirements imposed upon CITY pursuant to the terms of this Agreement are conditioned upon the following conditions precedent having been first fully and finally fulfilled:
(iia) This TENANT shall have provided satisfactory evidence to CITY that this Agreement and the Project Documents and Project Loan Documents to which it is a party have has been duly authorizedexecuted and delivered and is enforceable against TENANT in accordance with its terms, and, if requested by CITY, TENANT shall have caused a legal opinion to be delivered to CITY from outside legal counsel acceptable to CITY in which such legal counsel opines that this Agreement has been duly executed and delivered by VF Delaware TENANT and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF is enforceable against it TENANT in accordance with their its terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iiib) Neither All of the execution, delivery or performance representations and warranties made by VF Delaware or VF TENANT pursuant to the terms of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP material respects as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State commencement date of Delaware, (B) has full power the term of this Agreement and authority all of the covenants and the legal right to incur the obligations provided for agreements contained in this Agreement, and (C) has taken all necessary action Agreement which are required to authorize be fulfilled as of the execution, delivery and performance commencement date of the term of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party shall have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it fulfilled in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyall material respects.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each Each Incremental Facility shall become effective, as of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):applicable Incremental Effective Date; provided that:
(a) The Project Credit Facilities before and after giving effect to such Incremental Facility (and, if such Incremental Facility is being established in whole or in part on clause (2) of the definition of “Incremental Cap,” assuming the full amount of such Incremental Facility is drawn), each of the conditions set forth in Section 7.2 [Each Additional Loan or Letter of Credit] shall be satisfied;
(b) before and after giving effect to such Incremental Facility (and, if such Incremental Facility is being established in whole or in part on clause (2) of the definition of “Incremental Cap,” assuming the full amount of such Incremental Facility is drawn), no Potential Default or Event of Default has occurred and is continuing;
(c) the Loan Parties shall deliver to each Agent on or before the effective date of such Incremental Facility the following documents in a form reasonably acceptable to each applicable Administrative Agent and the Project Loan Documents shall have Collateral Agent:
(1) certifications of their corporate secretaries with attached resolutions certifying that the Incremental Facility has been approved by the Management Committee Loan Parties, (2) opinions of counsel, addressed to each Administrative Agent and the Project Lenders addressing the authorization, execution and enforceability of the Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received such Incremental Facility, and (3) if requested by the Construction/Term Lender as a condition Collateral Agent, amendments to the funding Mortgages executed and delivered by the applicable Loan Parties to the Collateral Agent for the benefit of the Construction/Term Facility Secured Parties to reflect the Incremental Facility, in form and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof substance reasonably satisfactory to Cogentrix GP the Collateral Agent, together with (A) the Required Flood Materials and Cogentrix LP (B) local counsel opinions regarding the due authorization, execution, delivery, and enforceability of such mortgage amendments. The Loan Parties shall have been provided cause the amendments described in clause (3) above to them by VF Delaware.be properly recorded and/or filed in the applicable filing or recording offices; and
(d) The following representations or warranties the Borrower shall be true and correct in all respects, and are hereby made deliver to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is each Agent a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct certificate dated as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully Incremental Effective Date signed by an Authorized Officer of the Borrower (1) certifying that the conditions set forth herein.
in clauses (ea) The following representations or warranties shall be true and correct in all respects, (b) above are satisfied and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i2) Each of Cogentrix GP and Cogentrix LP if clause (A2) is a corporation duly organized, validly existing and in good standing under the laws of the State definition of Delaware“Incremental Cap” is being utilized, (B) has full power and authority and the legal right to incur the obligations provided for setting forth calculations in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreementreasonable detail showing compliance with such clause.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. 12.1 The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are Underwriters’ obligations hereunder shall be subject to the satisfaction of each accuracy of the covenants, representations and warranties of the Corporation and the Sponsor contained in this Agreement as of the date of this Agreement and as of the Closing Date, the performance by the Corporation and the Sponsor of their respective obligations under this Agreement and the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities Underwriters shall have received at the Closing Time a legal opinion from Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP dated the Closing Date, in form and substance satisfactory to counsel to the Underwriters, acting reasonably, addressed to the Underwriters and counsel to the Underwriters, as to the laws of Canada and the Project Loan Documents shall have been approved by Qualifying Jurisdictions, which counsel, in turn, may rely upon the Management Committee opinions of local counsel where they deem such reliance proper as to the laws other than those of Canada, Ontario, Alberta and British Columbia and as to matters of fact, on certificates of the Auditor of the Corporation, public officials and officers of the Corporation and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP Sponsor and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions correspondence between or from public officials and stock exchange officials with respect to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consentsfollowing matters, approvalsincluding, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipwithout limitation:
(i) Each as to the incorporation of VF the Corporation and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing the Sponsor under the laws of the State Province of DelawareOntario, the ownership power and capacity of the Corporation and the Sponsor to carry on their businesses or activities as described in the Final Prospectus, to enter into and to carry out their obligations under this Agreement and each of the Material Contracts to which is 99% by Agro Power and 1% by VF (they are a party and, in the case of VF Delaware) or 1% by VF Delaware (in the case of VF)Corporation, (B) has full the requisite power and authority to issue the Offered Units, the Class A Restricted Voting Shares and the legal right to incur the obligations provided for in Warrants as contemplated by this Agreement;
(ii) that the Corporation is authorized to issue an unlimited number of Class A Restricted Voting Shares, Class B Shares and Common Shares;
(Ciii) has taken the number of issued and outstanding securities of the Corporation immediately prior to the Closing Time;
(iv) that all necessary action has been taken by the Corporation and the Sponsor to authorize the executionexecution and delivery of the Preliminary Prospectus and the Final Prospectus and, if applicable, any Supplementary Material and the filing of such documents under the Canadian Securities Laws in each of the Qualifying Jurisdictions and to authorize the use and delivery of the U.S. Placement Memorandum including any amendments or supplements thereto;
(v) that all necessary action has been taken by the Corporation and performance the Sponsor to authorize the execution and delivery of this Agreement and each of the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents Material Contracts to which it is a party and the performance of its obligations hereunder and thereunder;
(vi) that all necessary action has been taken by the Corporation to authorize the creation and issuance of the Offered Units, the Class A Restricted Voting Shares and Warrants underlying such Offered Units, the Founders’ Shares and the Class B Units and the Class B Shares and Warrants underlying such Class B Units;
(vii) that the attributes of the Offered Units, the Class A Restricted Voting Shares and Warrants underlying such Offered Units, the Founders’ Shares and the Class B Units and the Class B Shares and Warrants underlying such Class B Units are consistent in all material respects with the descriptions in the Final Prospectus and, if applicable, any Supplementary Material;
(viii) that the form and terms of the certificates representing the Class B Units, Class B Shares and the Warrants have been duly authorizedapproved by the Corporation and comply with the provisions of the constating documents of the Corporation and, in the case of the Class B Shares, the requirements of the Business Corporations Act (Ontario), and in the case of the Warrants, the requirements of the Exchange;
(ix) that upon the receipt by the Corporation of the subscription price for the Treasury Units, the Treasury Units will be duly and validly created, issued and outstanding (in the case of the Class A Restricted Voting Shares, as fully paid and non-assessable);
(x) that upon the receipt by the Corporation of the subscription price for the Class B Units, the Class B Units will be duly and validly created, issued and outstanding (in the case of the Class B Shares, as fully paid and non- assessable);
(xi) that the Over-Allotment Option has been validly created, and upon the receipt by the Corporation of the subscription price for the Option Units, the Option Units will be duly and validly created, issued and outstanding (in the case of the Class A Restricted Voting Shares, as fully paid and non- assessable);
(xii) that a sufficient number of Common Shares have been reserved for the conversion of Class A Restricted Voting Shares and the Class B Shares and issuance on exercise of the Warrants and upon the receipt by the Corporation of the exercise price for the Warrants upon due exercise of the Warrants, or in the event of a due cashless exercise, the Common Shares issuable on exercise will be validly issued as fully paid and non- assessable;
(xiii) that the execution and delivery of this Agreement and the Material Contracts and the consummation of the transactions contemplated by this Agreement (including the entering into of the Material Contracts) by the Corporation and the Sponsor and the issue and sale of the Treasury Units and the issue and sale of the Option Units by the Corporation, do not and will not result in a breach (whether after notice or lapse of time or both) of any of the terms, conditions or provisions of the constating documents or resolutions of the Corporation or the Sponsor or any applicable laws of the Province of Ontario or the laws of Canada applicable therein;
(xiv) that this Agreement and the other Material Contracts to which they are a party have been duly authorized and executed by the Corporation and delivered by VF Delaware and VF the Sponsor, as applicable, and constitute the a legal, valid and binding obligations obligation of the Corporation and the Sponsor enforceable against each of VF Delaware and VF enforceable against it them in accordance with their terms, except as enforceability enforcement of such agreements may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallygenerally and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable law;
(xv) that Odyssey Trust Company, at its principal offices in the city of Toronto, has been duly appointed as the Registrar and Transfer Agent for the Class A Restricted Voting Units and the Class A Restricted Voting Shares;
(xvi) that Odyssey Trust Company, at its principal offices in the city of Toronto, has been duly appointed as warrant agent for the Warrants;
(xvii) that the Offered Units and the Class A Restricted Voting Shares and Warrants underlying the Offered Units as well as the Warrants underlying the Class B Units have been conditionally approved for listing by the Exchange;
(xviii) a first trade by a holder of Common Shares received upon the exercise of the Warrants will not be subject to the prospectus requirements of Canadian Securities Laws and no filing, proceeding, approval, consent or authorization under Canadian Securities Laws will be required to permit the trading of such Common Shares in the Qualifying Jurisdictions, provided that the trade is not a “control distribution” as such term is defined in National Instrument 45-102 – Resale of Securities and the Corporation is a reporting issuer in one or more of the Qualifying Jurisdiction at the time of the trade;
(xix) that the statements under the heading “Eligibility for Investment” in the Final Prospectus are accurate as of the Closing Date, subject to the qualifications, assumptions, limitations and understandings set out therein;
(xx) that the summary under the heading “Certain Canadian Federal Income Tax Considerations” in the Final Prospectus is, as of the Closing Date, a summary of the principal Canadian federal income tax considerations generally applicable to a holder described in the summary who acquires Offered Units as beneficial owner pursuant to the Prospectus, subject to the qualifications, assumptions, limitations and understandings set out in such summary; and
(xxi) that all necessary documents have been filed and all requisite proceedings have been taken and all necessary approvals, permits, consents and authorizations of the appropriate regulatory authorities under the Canadian Securities Laws have been obtained by the Corporation to qualify the Offered Units for Distribution in each of the Qualifying Jurisdictions through investment dealers or brokers duly registered in the appropriate category under the applicable laws of the Qualifying Jurisdictions who have complied with the relevant provisions of such applicable legislation.
(iiib) Neither The Underwriters shall have received at the executionClosing Time a legal opinion dated the Closing Date, delivery or performance by VF Delaware or VF addressed to the Underwriters from counsel to the Underwriters, Stikeman Elliott LLP, with respect to such matters as the Underwriters may reasonably request.
(c) The Underwriters shall have received at the Closing Time, if applicable, a legal opinion dated the Closing Date, addressed to the Underwriters from U.S. counsel to the Corporation and Sponsor, in form and substance reasonably satisfactory to the Underwriters, to the effect that: (A) the offer and sale of the Treasury Units pursuant to this Agreement or any and in compliance with Schedule “A” hereto (including, if necessary, the Underwriters’ proposed offer and sale of the Project Documents or Project Loan Documents to which it is a partyOption Units, nor compliance by it with if any, on the terms and provisions hereof or thereofin the manner set forth in the Prospectus and the U.S. Placement Memorandum and this Agreement) do not require registration under the U.S. Securities Act; and (B) the Corporation is not and, including, without limitation, after giving effect to the assignment consummation of the Project Documents transactions specified in the Prospectus and Project Assets the U.S. Placement Memorandum to occur on or prior to the PartnershipClosing Date, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not become an "“investment company" or a company "controlled" by an "investment company" ” within the meaning of the United States Investment Company Act of 19401940 and rules thereunder; and
(d) The Underwriters shall have received at the Closing Time a letter dated the Closing Date, in form and substance satisfactory to the Underwriters addressed to the Underwriters from the Auditor of the Corporation, Deloitte LLP, confirming the continued accuracy of the comfort letter to be delivered to the Underwriters pursuant to Section 4.1(b), with such changes as may be necessary to bring the information in such letter forward to a date not more than two Business Days prior to the Closing Date, which changes shall be acceptable to the Underwriters.
(e) The Underwriters shall have received at the Closing Time certificates dated the Closing Date, addressed to the Underwriters and counsel to the Underwriters and signed by the Corporation with respect to the constating documents of the Corporation, all resolutions of the directors of the Corporation relating to 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.
(f) The Underwriters shall have received at the Closing Time a certificate or certificates dated the Closing Date, addressed to the Underwriters and counsel to the Underwriters from the Corporation and signed by the Chief Executive Officer or by the Chief Financial Officer of the Corporation or other officers of the Corporation acceptable to the Underwriters, certifying, after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) since the respective dates as of which information is given in the Final Prospectus, as amended.amended by any Supplementary Material (A) there has been no material change (actual, anticipated, contemplated, proposed or threatened, whether financial or otherwise) in the business, financial condition, affairs, operations, assets, liabilities or obligations (contingent or otherwise) or capital of the Corporation, and (B) no transaction has been entered into by the Corporation which is material to the Corporation, other than as disclosed in the Final Prospectus or any Supplementary Material, as the case may be;
(ii) that the Prospectus does not contain a misrepresentation and contains full, true and plain disclosure of all material facts relating to the Distribution of the Offered Units and that the U.S. Placement Memorandum, if applicable, as of its date and as of the Closing Date, did not and does 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, in the light of the circumstances under which they were made, not misleading within the meaning of the U.S. Exchange Act;
(iii) there are no contingent liabilities affecting the Corporation which are material to the Corporation, other than as disclosed in the Final Prospectus or any Supplementary Material as the case may be;
(iv) no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Offered Units or any other securities of the Corporation has been issued by any regulatory authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of such officers, contemplated or threatened under any of the Canadian Securities Laws or by any other regulatory authority;
(v) The the Corporation has complied with and satisfied the covenants, terms and conditions of this Agreement on its part to be complied with and satisfied up to the Closing Time; and
(vi) the representations and warranties of VF Delaware or VF or any of their respective Affiliates the Corporation contained in or pursuant to any of the Project Documents or Project Loan Documents this Agreement are true and correct as of the date hereof Closing Date with the same force and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, effect as if fully set forth hereinmade at and as of the Closing Time after giving effect to the transactions contemplated by this Agreement.
(eg) The following representations Underwriters shall have received at the Closing Time a certificate or warranties shall be true and correct in all respectscertificates dated the Closing Date, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions addressed to the PartnershipUnderwriters and counsel to the Underwriters from the Sponsor and signed by the Chief Executive Officer and by the Chief Financial Officer of the Sponsor or other officers of the Sponsor reasonably acceptable to the Underwriters, certifying on behalf of the Sponsor after having made due enquiry and after having carefully examined the Final Prospectus and any Supplementary Material, that:
(i) Each of Cogentrix GP the representations and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws warranties of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for Sponsor contained in this Agreement, Agreement are true and (C) has taken all necessary action correct as of the Closing Date with the same force and effect as if made at and as of the Closing Date after giving effect to authorize the execution, delivery and performance of transactions contemplated by this Agreement.; and
(ii) This the Sponsor has complied with and satisfied the covenants, terms and conditions of this Agreement to be complied with and Project Loan Documents satisfied up to which it the Closing Time.
(h) The Underwriters shall have received evidence satisfactory to the Underwriters that each of the Material Contracts has been entered into and is a party in full force and effect.
(i) The Underwriters shall have been duly authorized, received evidence satisfactory to the Underwriters that each of the Founders (including the Sponsor) has executed and delivered by Cogentrix GP the Forfeiture and Cogentrix LP Transfer Restrictions Agreement and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyUndertaking.
(iiij) Neither The Sponsor will have acquired as of or prior to the executionClosing Date an aggregate of 833,333 Class B Units for an aggregate purchase price of $2,500,000 and the Sponsor will have agreed to forfeit up to 500,625 Class B Shares to the extent to which the Over-Allotment Option is not exercised in full, delivery and the Founders will have acquired as of or performance by Cogentrix GP and Cogentrix LP prior to the Closing Date an aggregate of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization 4,046,458 Class B Shares for an aggregate purchase price of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business$25,000.
(ivk) It is not an "investment company" or a company "controlled" by an "investment company" within The Corporation shall have received the meaning conditional approval of the Investment Company Act Exchange to the listing of 1940, as amendedthe Offered Units on the Exchange at the Closing Time and Warrants upon the closing of the qualifying transaction.
Appears in 1 contract
Sources: Underwriting Agreement
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are this Amendment is subject to the satisfaction of the following conditions precedent:
a. the execution and delivery of this Amendment by each Credit Party, Agent, the Revolving Lenders listed on Schedule 1.1(b) (as amended hereby) and the Required Lenders;
b. the payment by Borrower (i) to each of the following conditions precedent Lenders that has executed this Amendment on the date hereof of a fully-earned, non-refundable amendment fee equal to 0.25% of the sum of such Lender’s Revolving Loan Commitment and Term Loan and (except those conditions, if any, that ii) to each of the Revolving Lenders providing additional Revolving Loan Commitments pursuant hereto such fees as may be specifically waived have been agreed in writing by Cogentrix GP or Cogentrix LPBorrower and each such Revolver Lender;
c. the delivery by the Credit Parties to Agent of authorizing resolutions duly executed and effective by the board of directors, shareholders, managers and/or members, as appropriate):
(a) The Project applicable, of such Credit Facilities Party authorizing the execution and delivery of this Amendment and the Project Loan Documents incurrence of the additional indebtedness, liabilities and obligations of such Credit Party hereunder, which such authorizing resolutions shall have been approved certified to and in favor of Agent by Responsible Officer of such Credit Party as true, correct and complete copies thereof;
d. the truth and accuracy of the representations and warranties contained in Section 4 hereof;
e. The Agent shall have received (i) a solvency certificate, dated the First Amendment Effective Date, signed by the Management Committee chief financial officer of Borrower and in form and substance as delivered on the Project Loan Documents will be executed Closing Date and (ii) a certificate, dated the First Amendment Effective Date and signed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing Responsible Officer of the Construction/Term Facility shall have occurred or been satisfied (other than evidence Borrower, certifying that the capital contributions described in Section 3.2 have been made) after giving effect to this Amendment and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of Revolving Loans on the Construction/Term Facility and the Revolving Facility shall have been delivered First Amendment Effective Date (y) no Default or received. A copy Event of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, Default exists and (Cz) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates each Credit Party set forth in or pursuant to any this Amendment and each of the Project Documents or Project other Loan Documents are true and correct in all material respects (without duplication of any materially qualifier contained therein); and
f. no Default or Event of Default shall have occurred and be continuing or arise as a direct result of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance effectiveness of this AgreementAmendment.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities purchase price for the Stock set forth in Paragraph 1 above is based on the FIFO net book value of the Corporation, which Shareholder represents to the Buyer will be Two Million Eight Hundred Thousand Dollars ($2,800,000) as of the Closing. The Buyer may cause to be taken a physical inventory of the assets of the Corporation prior to Closing, and Buyer and Shareholder shall agree upon a balance sheet as of the Project Loan Documents date of Closing (the "Closing Date Balance Sheet"). The purchase price shall have been approved be adjusted upwards by the Management Committee amount by which the FIFO net book value of the Corporation as determined in the Closing Date Balance Sheet is greater than Two Million Eight Hundred Thousand Dollars ($2,800,000) and adjusted downwards by the Project Loan Documents will be executed amount by all parties thereto. An original executed copy which the FIFO net book value of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP the Corporation as soon as availabledetermined in the Closing Date Balance Sheet is less than Two Million Eight Hundred Thousand Dollars ($2,800,000).
(b) In determining the FIFO net book value of the Corporation for purposes of the Closing Date Balance Sheet, Generally Accepted Accounting Principles, consistently applied shall be utilized by the parties. In the event the Buyer and Shareholder cannot agree on the Closing Date Balance Sheet, they shall each choose a certified public accountant to whom they shall submit the items in dispute for a determination by said accountant(s) which shall be binding on Shareholder and Buyer. If the two accountants so selected cannot agree and the difference exceeds $100,000, they shall select a third certified public accountant whose decision shall be final. For purposes of this Agreement the following methods of valuation shall be deemed to be in accordance with Generally Accepted Accounting Principles for the purpose of determining the amounts to be reflected on the Closing Date Balance Sheet:
(1) PARTS, ACCESSORIES, AND MISCELLANEOUS SUPPLIES. All conditions the new, genuine, original, unopened, current and unused Ford factory parts and accessories which could be returned to the closing of manufacturer by the Construction/Term Facility Corporation shall have occurred be valued at a price as defined in subparagraph (A) below. Damaged or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are obsolete parts shall not be required to be received by included in the Construction/Term Lender as a condition valuation and if any such parts are excluded they shall be distributed to the funding of the Construction/Term Facility Shareholder. The Corporation's miscellaneous service supplies and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing inventories shall be provided to Cogentrix GP valued at the Corporation's cost of such items. Said items shall appear on an inventory list prepared by Buyer and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made Corporation prior to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) Closing Date. The following representations or warranties inventory list shall be true incorporated herein and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to a part hereof the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, same as if fully set forth hereinherein and designated as SCHEDULE "1".
(eA) The following representations or warranties Buyer and Corporation shall determine the value for the parts referenced in Paragraph (1) above, per an inventory at prices which shall be true determined by the most current Manufacturer's Parts Catalog Price prior to Closing. Buyer may include in the valuation any parts and correct inventories not required to be purchased by Paragraph 1 as shall be determined by good faith negotiations between Buyer and Shareholder. Shareholder agrees that no additions or deletions shall be made in all respectssuch stocks except in the ordinary course of Corporation's business, and are hereby further, to keep adequate records of such additions and deletions, which records shall be made available to VF Delaware Buyer for review and VF by Cogentrix GP verification upon reasonable request. Buyer and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
Shareholder shall each pay for one-half (i1/2) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any cost of the terms, conditions or provisions of any Requirement of Law applicable inventory if an independent inventory service is engaged by the parties to it or its assets or businesscomplete the physical inventory.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to This Amendment shall be effective upon the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
the “Effective Date”): (a) The Project Credit Facilities the representations and the Project warranties contained herein and in all other Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respectsmaterial respects as of the date hereof, except for such representations and are hereby made warranties limited by their terms to Cogentrix GP and Cogentrix LP by VF Delaware and VF a specific date; (b) no Default or Event of Default shall be in existence as an inducement to their making capital contributions of the date hereof; (c) Borrower shall have delivered to the Partnership:Agent an executed original copy of this
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws holders of the State of Delaware, Subordinated Debt and Borrower shall have executed a Fifth Amendment to Note Purchase Agreement (the ownership of which is 99% by Agro Power and 1% by VF (“Note Purchase Agreement Amendment”) in the case of VF Delawareform attached hereto as Exhibit B and a First Amendment to Amended and Restated Convertible Senior Subordinated Note (the “Note Amendment”) or 1% by VF Delaware (in the case of VF), (B) has full power form attached hereto as Exhibit C and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement the holders of the Subordinated Debt shall have consented in writing to this Amendment, in form and substance satisfactory to Agent, and none of the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF provisions of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in Amendment shall be a breach or violation event of its charter documents default under the Note Purchase Agreement or by-laws or any with respect to the Subordinated Debt; (e) Borrower shall have paid to Agent all fees, costs and expenses owed to and/or incurred by the Agent and Lenders arising in connection with the Loan Documents and/or this Amendment, including all amounts owed pursuant to Section 7(f) below and the portion of the terms, conditions or provisions of any Requirement of Law applicable Fourth Amendment Fee due on the Effective Date; (f) Borrower shall have delivered to it or its assets or business.
(iv) It is not an "investment company" or Agent a company "controlled" by an "investment company" within the meaning certificate of the Investment Company Act corporate secretary or assistant secretary of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct Borrower dated as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandisof this Amendment, as if fully set forth herein.
to the incumbency and signature of the Persons executing this Amendment on behalf of Borrower, in form and substance acceptable to Agent; and (eg) The following representations or warranties all proceedings taken in connection with the transactions contemplated by this Amendment and all documentation and other legal matters incident thereto shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions satisfactory to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementAgent.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Gardenburger Inc)
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All any other conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for Loan set out in this Agreement, PFG will not make the Loan until PFG shall have received, in form and (C) has taken all substance satisfactory to PFG, such documents, and completion of such other matters, as PFG may reasonably deem necessary action or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to authorize negatively affect the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any collectability of the Project Documents Obligations, PFG’s security interest in Borrower’s Collateral or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or value thereof, including, without limitation:
(a) duly executed original signatures of each Borrower to the Loan Documents to which Borrower is a party, including this Agreement, a Cross-Corporate Continuing Guaranty and Security Agreement (together with ancillary Solvency Certificates), an Intellectual Property Security Agreement and related Collateral Notices and Agreements;
(b) Borrower’s respective constitutional documents and a good standing certificate of each Borrower certified by the assignment Secretary of State of the Project Documents and Project Assets State of Nevada as of a date no earlier than thirty (30) days prior to the Partnershipdate hereof, requires together with a foreign qualification certificate from the consent or authorization State of any other party (except such as have been duly obtained), or conflicts or will conflict with or result California for each Borrower operating in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.California;
(ivc) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.Incumbency Certificate and Secretary's Certificate certifying and appending borrowing resolutions for each Borrower;
(vd) The representations account control agreements as required by Section 8(a) of this Schedule, duly executed by Borrower and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.each relevant depositary institution;
(e) The following representations certified copies, dated as of a recent date, of financing statement searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or warranties shall have been or, in connection with the Loan, will be true terminated or released;
(f) the Representations, duly executed by the Agent on behalf of itself and correct each Borrower,
(g) a landlord consent executed in all respectsfavor of PFG by the Borrower’s principal office lessor in respect of Borrower’s premises in Irvine, California;
(h) a duly executed warrant purchase agreement and are hereby made warrants in favor of PFG to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to purchase 10,000,000 shares of Borrower’s common stock in agreed form (the Partnership:“PFG Warrant”);
(i) Each of Cogentrix GP and Cogentrix LP the insurance policies and/or endorsements required pursuant to Section 4.3;
(Aj) is a corporation duly organized, validly existing and in good standing under the laws payment of the State Fee specified in Section 3 of Delawarethis Schedule and PFG’s expenses incurred in connection with the Loan;
(k) a duly executed Compliance Certificate dated the date hereof;
(l) evidence of the full and indefeasible pay-off of any Indebtedness other than Permitted Indebtedness, together with the discharge any and all associated liens; and
(Bm) has full power and authority and to the legal right extent required in order to incur the obligations provided for provide Borrower additional time to satisfy certain conditions set forth in this AgreementSection 9, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding post-closing obligations of each of Cogentrix GP and Cogentrix LP enforceable against it letter agreement in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.PFG's customary form. By /s/ B▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ L▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: /s/ L▇▇▇▇▇▇▇ ▇▇▇▇▇ By /s/ L▇▇▇ ▇▇▇ By /s/ J▇▇▇ ▇▇▇▇▇▇▇▇ By /s/ B▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By /s/ L▇▇▇ ▇▇▇ By /s/ L▇▇▇ ▇▇▇
Appears in 1 contract
Sources: Loan and Security Agreement (Composite Technology Corp)
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make the contributions described in Section 3.2 are subject any other conditions to the satisfaction Loan set out in this Agreement, PFG will not make any Loan until PFG shall have received from Borrower, in form and substance satisfactory to PFG, such documents, and completion of each such other matters, as PFG may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to negatively affect the collectability of the following conditions precedent (except those conditionsObligations, if anyPFG’s security interest in Borrower’s Collateral or the value thereof. Notwithstanding the foregoing, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of Borrower agrees to deliver to PFG each Project Loan Document will item required to be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender PFG under this Agreement as a condition precedent to any Loan. Borrower expressly agrees that a Loan made prior to the funding receipt by PFG of the Construction/Term Facility any such item shall not constitute a waiver by PFG of Borrower’s obligation to deliver such item, and the Revolving Facility shall have been delivered or received. A copy making of all such deliveries and other evidence any Loan in the absence of the closing a required item shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made in PFG’s sole discretion. Without limiting the foregoing, as conditions precedent to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP Loan, Borrower shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnershipprovide:
(i) Each duly executed original signatures of VF and VF Delaware (A) Borrower to the Loan Documents to which Borrower is a limited liability company duly organizedparty, validly existing and in good standing under the laws of the State of Delawareincluding, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, the Intellectual Property Security Agreement and related Collateral Agreements and Notices, landlord consents and bailee waivers, and subordination agreements among PFG, Borrower and holders of Subordinated Debt;
(Cii) has taken all necessary action Borrower’s Constitutional Documents and, where applicable, a good standing certificate of Borrower certified by the Secretary of State or other Governmental Body of the jurisdiction of formation of Borrower, as of a date no earlier than thirty (30) days prior to authorize the date hereof, together with a foreign qualification certificate from the States of Wisconsin, Massachusetts, California, Connecticut, Minnesota, Alabama, Pennsylvania and Texas;
(iii) A Certificate of Incumbency and a Secretary’s Certificate certifying the Constitutional Documents of Borrower and resolutions of the Board of Borrower authorizing the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it such Borrower is a party, nor compliance by it with including in the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.PFG Warrant;
(iv) It is not an "investment company" or a company "controlled" Control Agreements as required by an "investment company" within the meaning Section 8(b) of the Investment Company Act this Schedule, duly executed by Borrower and each relevant depositary institution in favor of 1940PFG, as amended.including from Silicon Valley Bank;
(v) The representations certified copies, dated as of a recent date, of Security Instrument searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such Security Instruments either constitute Permitted Liens or have been or, in connection with the Loan, will be terminated or released;
(vi) the Representations, duly executed by Borrower,
(vii) landlord consents executed in favor of PFG by Borrower’s principal office lessor in respect of its premises in Madison, Wisconsin and, if required by PFG, each other premises where Borrower holds Collateral with a fair value in excess of $10,000, and warranties warehouseman’s/bailee waivers in respect of VF Delaware third party premises where Collateral with a fair value in excess of $10,000 is stored or VF or any housed, including Borrower’s facilities at Embedtek (Hartland, WI), 5Nines (Madison, WI) and TDS (Madison, WI);
(viii) duly executed Warrants in favor of their respective Affiliates PFG (the “PFG Warrant”) to purchase up to 66,000 Common Shares of Borrower, in or agreed form;
(ix) the insurance policies and/or endorsements required pursuant to any Section 4.3;
(x) payment of the Project Documents Fees specified in Section 3 of this Schedule and Lender Expenses incurred in connection with the Loan;
(xi) any third party consents required in order for Borrower to enter into and perform the Loan Documents;
(xii) execution and delivery of a subordination agreement between PFG and the Senior Lender, in agreed form;
(xiii) execution and delivery of a subordination Agreement between PFG and M▇▇▇ ▇▇▇▇▇▇, in agreed form;
(xiv) PFG shall have received true, correct and current copies of the Senior Loan Documents;
(xv) Borrower shall have paid the $200,000 (aggregate) “put” amount to Partners for Growth IV, L.P., SVB Financial Group and PFG Equity Investors, LLC under (and in cancelation of) the warrants to purchase Borrower’s common stock, each dated May 14, 2015;
(xvi) during the period between April 18, 2018 and the Effective Date, Borrower shall have received not less than $500,000 in Cash proceeds of the sale of its equity or Project Loan Documents are true Subordinated Debt;
(xvii) Execution, delivery and correct (as necessary or appropriate) filing of all Security Instruments; and
(xviii) to the extent that the conditions to this Agreement have not been completed as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LPEffective Date, mutatis mutandis, as if fully set forth herein.
(e) The following representations a post-closing obligations letter in PFG’s customary form by which PFG waives or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and defers performance of this Agreementsuch conditions as PFG is willing to defer in its sole business discretion. [Signature Page Follows] Section 3.4(d) – Fixtures, Etc.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation 2.1 Before Clause 4 of Cogentrix GP and Cogentrix LP this Supplemental Agreement shall take effect, the Borrower shall deliver or cause to make the contributions described in Section 3.2 are subject be delivered to or to the satisfaction order of the Agent the following documents and evidence:-
2.1.1 A certificate from a duly authorised officer of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):Security Parties
(ai) The Project Credit Facilities confirming that none of the documents delivered to the Agent pursuant to clauses 3.1.1 and 3.1.4 of the Loan Agreement have been amended or modified in any way since the date of their delivery to the Agent, or copies, certified by a duly authorised officer of the Security Party in question as true, complete, accurate and neither amended nor revoked, of any which have been amended or modified and (ii) setting out the names of the directors, officers and (other than the Guarantor) the shareholders of that Security Party.
2.1.2 A copy, certified by a director or the secretary of the Security Party in question as true, complete and accurate and neither amended nor revoked, of a resolution of the directors and a resolution of the shareholders of each Security Party (together, where appropriate, with signed waivers of notice of any directors' or shareholders' meetings) approving, and authorising or ratifying the execution of, this Supplemental Agreement, the Confirmation Deed, the Confirmation Letter and the Project Loan Documents shall have been approved Mortgage Addenda.
2.1.3 The notarially attested and legalised (in either case to the extent required by applicable law) power of attorney of each of the Management Committee Security Parties under which this Supplemental Agreement, the Confirmation Deed, the Confirmation Letter and the Project Loan Documents will Mortgage Addenda is to be executed by that Security Party.
2.1.4 Evidence of payment to the Agent of an amendment fee of nought point three five per cent (0.35%) of the Maximum Facility Amount to be allocated among the Banks in proportion to their Proportionate Shares for the account of each of the Banks who have consented to the Request.
2.1.5 This Supplemental Agreement, the Confirmation Deed, the Confirmation Letter and the Mortgage Addenda duly executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection thereto together with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws registration of the State of Delaware, Mortgage Addenda at the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a partyPanamanian Ship Registry.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation This Agreement shall become effective as of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to first date (the satisfaction of “Fifth Amendment Effective Date”) when each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):shall have been satisfied:
(a) The Project Credit Facilities (determined before giving effect to the replacement of any Non-Consenting Term B-1 Lenders) and each Lender holding Term B-1 Loans (after giving effect to the replacement of any Non-Consenting Term B-1 Lenders), in each case, (i) a Consent 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 Consent and (y) from the Borrower and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be Administrative Agent, an executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered counterpart to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.this Agreement;
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described representations and warranties set forth in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing 5 above shall be provided to Cogentrix GP true and Cogentrix LP.correct;
(c) The contribution any fees and reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP) owing by VF Delaware contemplated by Section 3.1(athe Borrower to the Administrative Agent and JPMCB pursuant to this Agreement or any letter agreement entered into in connection with this Agreement and invoiced at least three (3) Business Days prior to the date hereof shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct paid in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:full;
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws all Obligations of the State Borrower with respect to the Term B Loans owing to any Non-Consenting Term B Lender being replaced pursuant to Section 3 shall be paid in full to such Non-Consenting Term B Lender concurrently with the assignment described in Section 3, (ii) all Obligations of Delawarethe Borrower with respect to the Term B Loans owing to any Assigning Consenting Term B Lender shall be paid in full to such Assigning Consenting Term B Lender concurrently with the assignment described in Section 4(c)(i), (iii) all Obligations of the ownership of which is 99% Borrower with respect to the Cashless Consenting Term B Lender Assigned Amount owing to any Cashless Consenting Term B Lender pursuant to a Cashless Consenting Term B Lender Assignment contemplated by Agro Power Section 4(e) shall be paid in full to such Cashless Consenting Term B Lender concurrently with the assignment described in Section 4(e) and 1% by VF (iv) the Replacement Term B Lender shall pay to each such Non-Consenting Term B Lender, each such Assigning Consenting Term B Lender and each such Cashless Consenting Term B Lender an amount equal to (x) in the case of VF Delawareany Non-Consenting Term B Lender and any Assigning Consenting Term B Lender, the principal amount of the Term B Loans held by such Non-Consenting Term B Lender or such Assigning Consenting Term B Lender, as applicable, in each case, plus accrued and unpaid interest thereon, and (y) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitationCashless Consenting Term B Lender, the assignment Cashless Consenting Term B Lender Assigned Amount of the Project Documents such Cashless Consenting Term B Lender, in each case, plus accrued and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:unpaid interest thereon; and
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws all Obligations of the State of DelawareBorrower with respect to the Term B-1 Loans owing to any Non-Consenting Term B-1 Lender being replaced pursuant to Section 3 shall be paid in full to such Non-Consenting Term B-1 Lender concurrently with the assignment described in Section 3, (Bii) has all Obligations of the Borrower with respect to the Term B-1 Loans owing to any Assigning Consenting Term B-1 Lender shall be paid in full power to such Assigning Consenting Term B-1 Lender concurrently with the assignment described in Section 4(d)(i), (iii) all Obligations of the Borrower with respect to the Cashless Consenting Term B-1 Lender Assigned Amount owing to any Cashless Consenting Term B-1 Lender pursuant to a Cashless Consenting Term B-1 Lender Assignment contemplated by Section 4(f) shall be paid in full to such Cashless Consenting Term B-1 Lender concurrently with the assignment described in Section 4(f) and authority (iv) the Replacement Term B-1 Lender shall pay to each such Non-Consenting Term B-1 Lender, each such Assigning Consenting Term B-1 Lender and each such Cashless Consenting Term B-1 Lender an amount equal to (x) in the legal right to incur case of any Non-Consenting Term B-1 Lender and any Assigning Consenting Term B-1 Lender, the obligations provided for principal amount of the Term B-1 Loans held by such Non-Consenting Term B-1 Lender or such Assigning Consenting Term B-1 Lender, as applicable, in this Agreementeach case, plus accrued and unpaid interest thereon, and (Cy) has taken all necessary action to authorize in the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization case of any other party (except Cashless Consenting Term B-1 Lender, the Cashless Consenting Term B-1 Lender Assigned Amount of such as have been duly obtained)Cashless Consenting Term B-1 Lender, or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the termseach case, conditions or provisions of any Requirement of Law applicable to it or its assets or businessplus accrued and unpaid interest thereon.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
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Conditions. The obligation (a) As a condition of Cogentrix GP the opportunity to be nominated and Cogentrix LP recommended to make serve as Chairman of the contributions Board at the Company’s 2025 Annual Meeting of Stockholders, to the retirement pay and benefits described in Section 3.2 are subject 4 above, to the satisfaction Bonus Opportunities, and to the opportunity to receive the Board Service Compensation, you acknowledge and agree that you are required to (i) execute this Agreement within the time period set forth below, (ii) execute the general release of each claims attached hereto as Exhibit A within twenty-one (21) days following the date hereof (the “Initial Release”), (iii) execute the general post-employment release of claims attached hereto as Exhibit B by the later of seven (7) days following the Retirement Date and twenty-one (21) days following the date hereof (and in no event before the Retirement Date) (the “Supplemental Release”), and (iv) execute the general post-Board service release of claims attached hereto as Exhibit C within seven (7) days following the cessation of the following conditions precedent Non-Executive Period (except those conditionsand in no event before the final day of the Non-Executive Period) (the “Final Release”, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities together with the Initial Release and the Project Loan Documents shall have been approved by Supplemental Release, the Management Committee “Releases”), and, in each case of (ii) - (iv), not revoke your acceptance within the time periods provided in such Release. You further agree that signed and unrevoked Releases are an express condition to your receipt and retention of the Board Service Compensation, the Bonus Opportunities, and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP retirement pay and a copy thereof delivered to Cogentrix LP as soon as availablebenefits described in Section 4 above.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in By executing this Agreement, you hereby covenant and (C) has taken all necessary action agree to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is tender your resignation as a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any director of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, Company (including, without limitation, in your capacity as Chairman) promptly upon the assignment occurrence of an Early Full Retirement Event during the Non-Executive Period. If the independent members of the Project Documents Board unanimously determine in good faith that an Early Full Retirement Event has occurred (and Project Assets to such Early Full Retirement Event has not been cured within the Partnership, requires the consent or authorization applicable time period following delivery of any other party (except such as have been duly obtainedrequired notice thereof or is not capable of being cured), or conflicts or the Board will conflict with or result so inform you in writing and you will promptly, and in any event within two (2) business days after the cure period has expired (if any), fully retire as a breach or violation of its charter documents or by-laws or any director of the termsCompany by tendering your resignation, conditions or provisions of with such resignation having immediate effect upon the Board’s determination to accept such resignation (any Requirement of Law applicable to it or its assets or business.
(iv) It is not such resignation, an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties “Early Full Retirement”). Any such Early Full Retirement shall be true and correct in all respectstreated as your “Retirement” for purposes of your outstanding equity awards as well as any public disclosures or announcements made by the Company, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is unless a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP Cause Event exists. For purposes of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.“Early
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All any other conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for Loan set out in this Agreement, PFG will not make the Loan until PFG shall have received, in form and (C) has taken all substance satisfactory to PFG, such documents, and completion of such other matters, as PFG may reasonably deem necessary action or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by PFG in its sole discretion, negatively affect or be reasonably expected to authorize negatively affect the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any collectability of the Project Documents Obligations, PFG’s security interest in Borrower’s Collateral or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or value thereof, including, without limitation, :
(a) duly executed original signatures of Borrower to the assignment Loan Documents to which Borrower is a party;
(b) Borrower’s respective constitutional documents and a good standing certificate of Borrower certified by the Secretary of State of the Project Documents and Project Assets State of Maryland as of a date no earlier than thirty (30) days prior to the Partnershipdate hereof, requires together with foreign qualification certificates from the consent or authorization State of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.Wisconsin;
(ivc) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.duly executed original signatures to borrowing resolutions for Borrower;
(vd) The representations account control agreements as required by Section 8(b) of this Schedule, duly executed by Borrower, US Bank and warranties the Senior Lender in respect of VF Delaware or VF or any each account of their respective Affiliates Borrower with such depositary institutions in or pursuant to any favor of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.PFG;
(e) The following representations certified copies, dated as of a recent date, of financing statement searches, as PFG shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or warranties shall have been or, in connection with the Loan, will be true terminated or released;
(f) the Representations, duly executed by Borrower,
(g) a landlord consent executed in favor of PFG by the Borrower’s principal office lessor in respect of Borrower’s principal premises;
(h) without duplication for the warrant referenced in Section 9(h) of the Revolving Loan, a duly executed warrant purchase agreement and correct warrant in all respects, and are hereby made favor of PFG to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to purchase 76,923 shares of Borrower’s common stock in agreed form (the Partnership:“PFG Warrant”);
(i) Each of Cogentrix GP and Cogentrix LP the insurance policies and/or endorsements required pursuant to Section 4.3;
(Aj) is a corporation duly organized, validly existing and in good standing under executed Compliance Certificate dated the laws date hereof;
(k) the closing of the State Revolving Loan contemporaneously with this Agreement;
(l) execution and delivery of Delaware, (B) has full power and authority a subordination agreement between PFG and the legal right to incur Senior Lender in respect of obligations under this Agreement and the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.Revolving Loan;
(iim) This Agreement PFG shall have received true, correct and Project current copies of the Senior Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.Documents; and
(iiin) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any closing of the termsLoan and the Revolving Loan on or before March 5, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.2010. Section 7—”Permitted Indebtedness”—Other Existing Permitted Indebtedness:
Appears in 1 contract
Conditions. The obligation of Cogentrix GP This Amendment shall not be effective unless and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):until:
(a) The Project Revolver Administrative Agent and Term Administrative Agent shall have received this Amendment duly executed by Borrower, Guarantors, Revolver Administrative Agent, Term Administrative Agent, the Aggregate Majority Lenders, the Majority Lenders under the Revolving Credit Facilities Agreement and the Project Loan Documents shall have been approved by Majority Term A Lenders under the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Term A Credit Agreement;
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described representations and warranties in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which this Amendment are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, material respects on and are hereby made to Cogentrix GP as of the date of this Amendment;
(c) Revolver Administrative Agent and Cogentrix LP by VF Delaware and VF as Term A Administrative Agent shall have received an inducement to their making capital contributions to the Partnership:
officer’s certificate of Borrower certifying (i) Each the constituent documents of VF Borrower (or any changes thereto, if any, since the date last certified to Revolver Administrative Agent and VF Delaware Term A Administrative Agent), (Aii) is a limited liability company duly organizedthe incumbency of the officers of Borrower authorized to execute the Amendment Documents, validly existing (iii) certificate of existence and in good standing under of Borrower certified by the laws Secretary of State of the State of Delaware, and (iv) resolutions adopted by the ownership Board of which is 99% Directors of Borrower authorizing the execution, delivery, and performance of the Amendment Documents;
(d) Revolver Administrative Agent shall have received, (i) for the benefit of each Revolver Lender that provides their signature pages to this Amendment by Agro Power and 1% by VF noon, New York time, June 27, 2008 (in the case of VF Delaware) or 1% by VF Delaware (in the case of VFeach a “Consenting Revolver Lender”), a fee equal to the product of (A) $1,975,000 times (B) has full power and authority and the legal right to incur result of (x) the obligations provided for in this Agreementamount of such Revolver Lender’s Commitment on the effective date of, and after giving effect to, this Amendment, divided by (Cy) has taken the total aggregate Commitments of all necessary action Consenting Revolver Lenders and (ii) such other fees (without duplication of the fee referenced in clause (i) above) and expenses in such amounts and at such times as heretofore set forth in a letter agreement between Borrower, Revolver Administrative Agent and Banc of America Securities LLC, and as otherwise required under the Revolving Credit Agreement;
(e) Term A Administrative Agent shall have received (i) for the benefit of each Term A Lender that provides their signature pages to authorize this Amendment by noon, New York time, June 27, 2008 (each a “Consenting Term A Lender”), a fee equal to the executionproduct of (A) $325,000 times (B) the result of (x) the amount of such Term A Lender’s Commitment on the effective date of, delivery and performance after giving effect to, this Amendment, divided by (y) the total aggregate Commitments of this all Consenting Term A Lenders and (ii) such other fees (without duplication of the fee referenced in clause (i) above) and expenses in such amounts and at such times as heretofore set forth in a letter agreement between Borrower, Term A Administrative Agent and Banc of America Securities LLC, and as otherwise required under the Term A Credit Agreement;
(f) In addition to the fees and expenses set forth in clauses (d) and (e) above, Borrower shall have paid to Revolver Administrative Agent, Term A Administrative Agent, Revolver Lenders, and Term A Lenders all expenses of each such Person, (including their respective attorneys’) incurred in connection with the Revolving Credit Agreement and the Project Documents Term A Credit Agreement and Project each of the other Loan Documents to which it the extent that invoices are presented to Borrower for payment prior to 5:00 p.m., eastern time, on June 27, 2008 (with any invoice submitted after that time being payable by Borrower promptly after such invoice is a party.delivered to Borrower);
(iig) This Agreement and Revolver Administrative Agent shall have received from Borrower a payment in the Project Documents and Project amount of $35,000,000, together with interest thereon, to be applied to the Outstanding Amount of all Fourth Amendment Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations Outstandings of each Lender, according to each such Lender’s Pro Rata Share, such that the Outstanding Amount of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project all Fourth Amendment Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is Outstandings shall not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct exceed $55,000,000 as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth hereinhereof.
(eh) The following representations or warranties Term A Administrative Agent shall have received from Borrower a payment in the amount of $35,000,000, together with interest thereon, to be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions applied to the Partnership:Outstanding Amount of the Term A Loan of each Lender, according to each such Lender’s Pro Rata Share, such that the Outstanding Amount of the Term A Loan shall not exceed $65,000,000 as of the date hereof.
(i) Each of Cogentrix GP Revolver Administrative Agent and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of DelawareTerm A Administrative Agent shall have received from Borrower, (Bi) has full power documentation evidencing an initial equity investment in Borrower by MP CA Homes LLC in an amount of not less than $380 million (prior to transaction costs) and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement a true and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning correct copy of the Investment Company Act Agreement dated as of 1940May 26, 2008, by and between Borrower and MP CA Homes LLC as such document was filed with the most recent 8-K of Borrower, as amendedamended (any such amendments in form and content satisfactory to Revolver Administrative Agent and Term A Administrative Agent in their reasonable discretion).
Appears in 1 contract
Sources: Revolving Credit Agreement and Term Loan a Credit Agreement (Standard Pacific Corp /De/)
Conditions. 5.01 Conditions to Each Party's Obligations to Effect the Transactions Contemplated Hereby. The obligation respective obligations of Cogentrix GP and Cogentrix LP each party hereto to make effect the contributions described in Section 3.2 are transactions contemplated hereby shall be subject to the satisfaction fulfillment at or prior to the Closing of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities No statute, rule, regulation, executive order, decree, injunction or restraining order shall have been enacted, entered, promulgated or enforced by any court of competent jurisdiction or governmental authority, nor shall any action or proceeding brought by any governmental authority or agency be pending, which (i) prevents, restricts or delays or seeks to prevent, restrict or delay the consummation of the transactions contemplated by this Agreement or (ii) seeks a material amount of monetary damages in connection with the consummation of the transactions contemplated by this Agreement.
(b) Sellers and Buyer and any other person (as defined in the HSR Act) required in connection with the transactions contemplated hereby to file a Notification and Report Form for Certain Mergers and Acquisitions with the Antitrust Division and the Project Loan Documents FTC pursuant to the HSR Act shall have made such filings and all applicable waiting periods with respect to each such filing (including any extensions thereof) shall have expired or been terminated.
(c) Buyer and the Company shall have filed with the FCC all requisite applications in connection with the transfer of control of all FCC-licensed satellite earth station facilities, experimental FCC authorizations, and equipment authorizations currently held by the Company pursuant to the FCC Rules, and each such application shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF DelawareFCC.
(d) Each condition to closing set forth in that certain Agreement Regarding Stock Acquisition (the "Agreement Regarding Stock Acquisition") among Stephen P. Kavouras, Buyer an▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ on Schedule 1 as Sellers, dated of even date herewith, shall have been fulfilled at or prior to Closing, or such condition shall have been waived by the party whose obligations under the Agreement Regarding Stock Acquisition were contingent upon such condition.
5.02 Conditions to the Obligations of Sellers to Effect the Transactions Contemplated Hereby. The obligations of Sellers to effect the transactions contemplated hereby shall be further subject to the fulfillment at or prior to the Closing of each of the following conditions, any one or more of which may be waived in whole or in part by a majority of Sellers in writing:
(a) Buyer shall have performed and complied in all material respects with all agreements, obligations, conditions and covenants contained in this Agreement required to be performed and complied with by it at or prior to the 6 - 105 - Closing and all representations or and warranties of Buyer contained in this Agreement shall be true and correct in all respectsmaterial respects as of the date of this Agreement and as of the Closing Date (as if the Closing Date was the date of this Agreement), and are hereby made Sellers shall have received certificates to Cogentrix GP that effect signed by the President or any Vice President of Buyer together with such other documents, instruments and Cogentrix LP writings required to be delivered by VF Delaware and VF as an inducement to their making capital contributions Buyer at or prior to the Partnership:Closing pursuant to this Agreement or otherwise reasonably required by Buyer in connection herewith.
(b) Buyer shall have delivered to Sellers (i) Each a copy of VF and VF Delaware (A) is a limited liability company duly organizedthe Certificate of Incorporation of Buyer, validly existing and in good standing under including all amendments thereto, certified by the laws Secretary of State of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (Cii) has taken all necessary action a certificate from the Secretary of the State of Delaware to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it effect that Buyer is a partyin good standing in such State.
(iic) This Agreement and the Project Documents and Project Loan Documents to No actions or proceedings which it is have a party material likelihood of success shall have been duly authorizedinstituted or, executed and delivered to the knowledge of Buyer, threatened by VF Delaware and VF and constitute any governmental body or authority to restrain or prohibit any of the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallytransactions contemplated hereby.
(iiid) Neither All material consents, waivers, authorizations, licenses and approvals, if any, necessary to permit Sellers to consummate the execution, delivery or performance transactions contemplated by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as shall have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth hereinreceived.
(e) The following representations All documents and instruments to be delivered at Closing or warranties otherwise in connection with the transactions contemplated by this Agreement shall be true reasonably satisfactory in form and correct in all respects, substance to Sellers and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreementcounsel.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Stock Purchase Agreement (Data Transmission Network Corp)
Conditions. The obligation This Agreement shall become effective on the date of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditionssuch date, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriatethe “Incremental Effective Date”):
(a) The Project Credit Facilities Administrative Agent shall have received (i) executed signature pages to this Agreement from the Parent Borrower, each other Loan Party party hereto, each Incremental Tranche A Term Lender and the Project Loan Documents Required Lenders; provided, that receipt of executed signature pages to this Agreement from the Required Lenders shall have been approved only be a condition to the effectiveness of Sections III and IV of this Agreement, and shall not be a condition to the effectiveness of any other provision of this Agreement, and (ii) a Borrowing Request, duly executed by the Management Committee Parent Borrower, setting forth the information required pursuant to Section 2.03 of the Credit Agreement in respect of a Tranche A Term Borrowing and requesting the Project Loan Documents will be executed by all parties thereto. An original executed copy borrowing of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availablethe Incremental Tranche A Term Loans on the Incremental Effective Date.
(b) All conditions The Administrative Agent shall have received a favorable written opinion (addressed to the closing Administrative Agent and the Lenders and dated the Incremental Effective Date) of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in Section 3.2 have been made) form and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition substance reasonably satisfactory to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or receivedAdministrative Agent. A copy of all The Parent Borrower hereby requests such deliveries and other evidence of the closing shall be provided counsel to Cogentrix GP and Cogentrix LPdeliver such opinion.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) Administrative Agent shall have been made received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the satisfaction organization, existence and good standing of Cogentrix GP the Parent Borrower and Cogentrix LP the authorization of the Transactions, all in form and evidence thereof reasonably substance satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delawarethe Administrative Agent.
(d) The following Administrative Agent shall have received a customary certificate, in form and substance reasonably satisfactory to the Administrative Agent, dated the Incremental Effective Date and signed by the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the Transactions, are solvent.
(e) The Administrative Agent shall have received, or shall have been authorized by the Parent Borrower to deduct from the proceeds of the Incremental Tranche A Term Loans, all fees and other amounts due and payable on or prior to the Incremental Effective Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including fees, charges and disbursements of one counsel in each applicable jurisdiction) required to be reimbursed or paid by any Loan Party hereunder or under any Loan Document.
(f) On the Incremental Effective Date, after giving effect to the Transactions, neither the Target nor any of its Subsidiaries shall have any Material Indebtedness for borrowed money other than (x) in their respective capacities as guarantors of the Obligations and (y) Indebtedness which is permitted under the Credit Agreement and which the Parent Borrower has notified the Administrative Agent will remain outstanding.
(g) The acquisition (the “Acquisition”) of all of the capital stock of Allfast Fastening Systems, Inc. (the “Target”) shall be consummated pursuant to the Stock Purchase Agreement, dated as of September 19, 2014 (together with all exhibits and schedules thereto, the “Purchase Agreement”), entered into between TriMas UK Aerospace Holdings Limited, Holdings, the Target, the sole shareholder of the Target and ▇▇▇▇▇ ▇▇▇▇▇▇▇, substantially concurrently with the funding of the Incremental Tranche A Term Loans, and no provision of the Purchase Agreement shall have been amended or waived, no consent shall have been given thereunder, and no supplement shall have been made thereto (including, for the avoidance of doubt, any supplement to any schedule), in any manner materially adverse to the interests of the Lenders without the prior written consent of the Administrative Agent.
(h) The Administrative Agent shall have received (i) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target and its Subsidiaries for the three most recently completed fiscal years ended at least 90 days before the Incremental Effective Date and (ii) unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target and its Subsidiaries for each fiscal quarter ended at least 45 days before the Incremental Effective Date and subsequent to the most recently completed fiscal year for which financial statements are provided pursuant to clause (i) above (in the case of this clause (ii), without footnote disclosure and without having undergone a SAS 100 review).
(i) The Administrative Agent shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Parent Borrower and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 45 days prior to the Incremental Effective Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).
(j) The Administrative Agent shall have received, at least three Business Days prior to the Incremental Effective Date, all documentation and other information about Holdings, the Parent Borrower and its Subsidiaries as shall have been reasonably requested by the Administrative Agent in writing at least ten Business Days prior to the Incremental Effective Date and that the Administrative Agent reasonably determines is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(k) The Administrative Agent shall have received a customary certificate, in form and substance reasonably satisfactory to the Administrative Agent, dated the Incremental Effective Date and signed by an authorized officer of the Parent Borrower, certifying that as of the date of execution of the Purchase Agreement (and assuming the Incremental Tranche A Term Loans were fully funded on such date) (a) no Default or Event of Default was in existence, (b) the representations or and warranties of the Loan Parties set forth in the Loan Documents were true and correct in all respects and (c) the Parent Borrower was in pro forma compliance with the financial covenants set forth in Sections 6.12 and 6.13 of the Credit Agreement.
(l) The Specified Purchase Agreement Representations (as defined below) and the Specified Representations (as defined below) shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP material respects (or in all respects if qualified by VF Delaware and VF as an inducement to their making capital contributions materiality); provided that to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or extent any of the Project Documents Specified Purchase Agreement Representations are qualified by or Project Loan Documents subject to which it is a party, nor compliance by it with the terms and provisions hereof “material adverse effect,” “material adverse change” or thereof, including, without limitationsimilar term or qualification, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties definition thereof shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP a Material Adverse Effect (as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.defined in
Appears in 1 contract
Conditions. The obligation 2.1 Before Clause 4 of Cogentrix GP and Cogentrix LP this Third Supplemental Agreement shall take effect, the Security Parties shall deliver or cause to make the contributions described in Section 3.2 are subject be delivered to or to the satisfaction order of the Agent the following documents and evidence:-
2.1.1 A copy of the constitutional documents of the New Pledgor together with such other evidence as the Agent may reasonably require that the New Pledgor is duly incorporated in its country of incorporation and remains in existence with power to enter into, and perform its obligations under, the Relevant Documents to which the New Pledgor is or is to become a party.
2.1.2 A certificate of a duly authorised officer of the New Pledgor certifying that each copy document relating to it is correct, complete and in full force and effect as at a date no earlier than the date of this Third Supplemental Agreement and setting out the names of the directors, officers and shareholders of the New Pledgor and the proportion of shares held by each shareholder.
2.1.3 An original executed and legalised resolution of the directors and an original executed and legalised resolution of the shareholders of the New Pledgor (together, where appropriate, with signed waivers of notice of any directors’ or shareholders’ meetings) approving, and authorising or ratifying the execution of, the New Share Pledges;
2.1.4 The executed original and legalised power of attorney of each of the following conditions precedent (except those conditionsNew Pledgor under which the New Share Pledges, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will are to be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as availablethe New Pledgor.
(b) All conditions to the closing 2.1.5 A certificate of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as incumbency from a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations authorised officer of each of VF Delaware the Borrowers and VF enforceable against it the New Corporate Guarantor confirming that none of the documents delivered to the Lender pursuant to Clause 3.1 of the Loan Agreement have been amended or modified in accordance with any way since the date of their termsdelivery to the Agent, except or copies, certified by a duly authorised officer of the Security Party in question as enforceability may be limited by general equitable principles true, complete, accurate and by applicable bankruptcyneither amended nor revoked, insolvency, reorganization, moratorium of any which have been amended or similar laws affecting the rights of creditors generallymodified.
(iii) Neither 2.1.6 A certificate of good standing in respect of each of the executionBorrowers, delivery or performance the New Corporate Guarantor and the New Pledgor.
2.1.7 The Additional Security Documents, together with all notices and other documents required by VF Delaware or VF of this Agreement or any of them, duly executed.
2.1.8 A letter from ▇▇▇▇▇▇ Nominees Limited, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (tel.: + ▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ / Fax: + ▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇) accepting their appointment by each of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitationBorrowers, the assignment New Corporate Guarantor and the New Pledgor as agent for service of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or proceedings pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Third Supplemental Agreement.
(ii) This Agreement and Project Loan Documents 2.1.9 If required by the Agent, confirmation satisfactory to which it is a party have been duly authorized, executed and delivered the Lenders that all legal opinions required by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it Lender will be given substantially in accordance with their terms, except as enforceability may be limited the form required by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyAgent.
(iii) Neither 2.2 If the execution, delivery or performance by Cogentrix GP and Cogentrix LP Agent agrees that Clause 4 of this AgreementThird Supplemental Agreement shall take effect prior to the Effective Date, nor compliance the Borrowers and the New Corporate Guarantor undertake to deliver all outstanding documents and evidence to or to the order of the Agent no later than the date specified by it with the terms Agent, which however, shall not be taken as a waiver of the Agent’s right to require production of all the documents and provisions hereofevidence required by Clause 2.1.
2.3 All documents and evidence delivered to the Agent pursuant to this Clause shall:-
2.3.1 be in form and substance acceptable to the Agent;
2.3.2 be accompanied, requires if required by the consent or authorization of any other party (except such as have been duly obtained)Agent, or conflicts or will conflict with or result by translations into the English language, certified in a breach manner acceptable to the Agent; and
2.3.3 if required by the Agent, be certified, notarised, legalised or violation of its charter documents or bylaws or any of attested in a manner acceptable to the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessAgent.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Secured Loan Facility Agreement (NewLead Holdings Ltd.)
Conditions. The obligation of Cogentrix GP In addition to the other provisions set forth in this Agreement and Cogentrix LP to make in the contributions described in Section 3.2 are Loan Documents, Lender’s forbearance is expressly subject to and conditioned upon the satisfaction of each continual compliance by the Forbearance Parties with the following terms, conditions and provisions, which shall be deemed to be amendments to and part of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):Loan Documents:
(a) The Project Credit Facilities During the Forbearance Period, each Forbearance Party shall continue to perform and comply with each term, condition and provision of this Agreement and the Project Loan Documents Documents, and no Forbearance Event of Default, Event of Default or other breach or default shall have been approved by occurred and be continuing under this Agreement or any of the Management Committee and Loan Documents, except the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Current Defaults;
(b) All conditions In order to induce Lender to enter into this Agreement, the Forbearance Parties hereby agree to pay to Lender a non-refundable forbearance fee in the amount of TEN THOUSAND and 00/100 Dollars ($10,000) (the “Forbearance Fee”), which fee is payable immediately and fully earned as of the effective date written above;
(c) On or before the date hereof (as well as, to the extent applicable, (i) every fourth week thereafter and (ii) within three business days after the closing of any sale of the Construction/Term Facility Borrower’s assets), Borrower shall have occurred or been satisfied provide Lender with a 4-week cash flow budget prepared by Borrower and consented to by Lender (the “Budget”). Borrower has advised Lender that it will adhere to the budget during the Forbearance Period. The Budget reflects, on a line-item basis, anticipated cash receipts and expenditures on a weekly basis and includes all necessary and required expenses that Borrower expects to incur during the Forbearance Period. Not later than the second (2nd) business day of each week commencing with the second week of the period covered by the Budget, the Borrower shall provide the Lender with a variance report reflecting, on a line-item basis, the actual cash disbursements and revenues for the preceding week and the percentage variance of such actual disbursements and revenues from those reflected in the Budget for that period. Any disbursement by Borrower other than evidence for budgeted amounts as set forth in the Budget shall constitute an Event of Default under this Agreement unless Lender consents to those changes in writing; provided, however, that Borrower may make payments in excess of the capital contributions described total budgeted disbursements so long as the percentage variance (the “Variance Percent”) of actual disbursements of the aggregate of all actual disbursements for each week shall not exceed ten percent (10.0%) of the budgeted disbursements for that week;
(d) On or before the date hereof, Borrower shall secure directors and officers liability insurance (“D&O Insurance”), which shall be effective immediately and remain in Section 3.2 place throughout the Forbearance Period, with premiums for such D&O Insurance included in the Budget;
(e) At all times prior to the sale of substantially all of the Borrower’s business segments, ▇▇▇▇▇▇ ▇▇▇▇▇▇ (“▇▇▇▇▇▇”) shall remain the Chief Executive Officer of Borrower;
(f) On or before the date hereof, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇▇”) shall be appointed the Chief Restructuring Officer of Borrower, and ▇▇▇▇▇▇▇▇▇ Consulting (“▇▇▇▇▇▇▇▇▇ Consulting”) shall be reinstated as financial advisor to Borrower. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Consulting shall remain in such positions until such time as Borrower’s business segments have been madesold pursuant to a sale or sales acceptable to Lender;
(g) ▇▇▇▇▇▇▇▇▇▇▇ Investment Partners (“▇▇▇▇▇▇▇▇▇▇▇”) shall be immediately reinstated as investment banker to Borrower pursuant to the terms of its existing engagement letter with Borrower. ▇▇▇▇▇▇▇▇▇▇▇ shall remain in such position until such time as Borrower’s business segments have been sold pursuant to a sale or sales acceptable to Lender;
(h) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ (collectively, the “New Board Members”), shall be appointed to Borrower’s board of directors (the “Board”) by Phil Firrek and ▇▇. ▇▇▇ ▇▇▇▇▇▇, the current board of directors (the “Current Board”), immediately after the D&O Insurance has been obtained by Borrower. To the extent any additional vacancies on the Board occur, the remaining directors of the Board, including the New Board Members, shall fill any such vacancy with a director acceptable to Lender and BIP Capital (“Buckhead”). The Current Board shall not be required under this Agreement or because of any fiduciary duty to independently seek, negotiate, or research the feasibility of any offers received hereafter from third parties to purchase Borrower’s business or any segment thereof. If any such offers related to the sale of Borrower’s business, or any segment thereof, are received hereafter by the Current Board, they shall convey same to ▇▇▇▇▇▇▇▇▇ Consulting and have no further duty or obligation to manage them, except to the extent that any offers are brought to the whole Board for its consideration;
(i) No Proceeding may be commenced by Borrower unless the New Board Members have each voted in favor of the commencement of such Proceeding. Prior to the commencement of any such Proceeding, Borrower’s Bylaws shall be amended to require the vote of the New Board Members in support of the commencement of a Proceeding, or, in the alternative, Borrower shall make other binding arrangements requiring the vote of each Independent Board Member as a prerequisite to the filing of any such Proceeding by Borrower;
(j) Prior to the appointment of the New Board Members, the Current Board shall not (i) execute any letters of intent or otherwise bind Borrower to any matters, including without limitation, any agreements containing exclusivity provisions with respect to the sale of any of Borrower’s business segments without the consent of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ or (ii) participate in any negotiations with any parties regarding the Borrower’s business;
(k) Subject to Borrower’s compliance with this Section 5, the Current Board may be paid up to $40,000 ($20,000 each) per quarter (first quarter commencing on December 1, 2016 and ending on February 28, 2017), in the aggregate, with a maximum compensation to the Current Board of $80,000 ($40,000 each), in the aggregate, which amounts shall be paid from the proceeds of the sale of Borrower’s business segments; provided, however that $10,000 of such amounts shall be paid three business days after receipt of written evidence of full compliance of the conditions set forth in Sections 5(f), (g) and (h) above;
(l) A sale of Borrower’s business segments may be negotiated and consummated only by ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, in consultation with Lender, Buckhead and the Board;
(m) In the event one or more bidders for a significant business segment or segments of Borrower submits a bid, in form and substance acceptable to ▇▇▇▇▇▇▇▇▇ and Lender, conditioned on a sale through a court-appointed receiver or a sale pursuant to 11 U.S.C. § 363 (“Sale Process”), the Board shall provide prior written consent to such Sale Process, so long as such bid provides for standard protections to Lender and Buckhead;
(n) Except as otherwise set forth herein (including Section 5(k) above), the Forbearance Parties shall not make any distributions to the Current Board during the Forbearance Period;
(o) The Forbearance Parties shall pay on demand all governmental consentsexpenses incurred by or on behalf of Lender, approvalsincluding without limitation, permits reasonable legal fees and licenses and other deliveries expenses incurred by Lender in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding preparation, drafting, negotiation and enforcement of this Agreement; and
(p) All of the Construction/Term Facility warranties and the Revolving Facility shall have been delivered or received. A copy representations of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties each Forbearance Party contained herein shall be true and correct in all material respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditionsshall automatically apply to each Transfer, if any, that may be specifically waived without the necessity of same being stated or referred to in writing by Cogentrix GP or Cogentrix LP, as appropriate):Landlord’s written consent:
(a) The Project Credit Facilities Tenant shall execute, have acknowledged and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered deliver to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respectsLandlord, and are hereby made cause the Transferee to Cogentrix GP execute, have acknowledged and Cogentrix LP by VF Delaware deliver to Landlord, an instrument in form and VF as an inducement substance acceptable to their making capital contributions to the Partnership:
Landlord in which (i) Each of VF the Transferee adopts this Lease and VF Delaware (A) is a limited liability company duly organizedagrees to perform, validly existing jointly and in good standing under the laws severally with Tenant, all of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their termsTenant hereunder, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting to the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents space Transferred to which it is a party, nor compliance by it with the terms and provisions hereof or thereofit, including, without limitation, the assignment prohibition against rent based on the income or profits derived from the Premises (any purported lease to the contrary being null and void), (ii) the Transferee grants Landlord an express first and prior security interest in its personal property brought into the transferred space to secure its obligations to Landlord hereunder, (iii) Tenant subordinates to Landlord’s statutory lien and security interest any liens, security interests or other rights which Tenant may claim with respect to any property of the Project Documents Transferee, (iv) Tenant agrees with Landlord that, if the rent or other consideration due by the Transferee exceeds the Rent for the transferred space, then Tenant shall pay Landlord as Additional Rent hereunder ninety percent (90%) of all such excess Rent and Project Assets other consideration, net of reasonable leasing commissions and tenant improvement costs directly required in connection with such Transfer actually paid by Tenant, promptly upon Tenant’s receipt thereof, (v) Tenant and the Transferee agree to provide to Landlord, at their expense, direct access from a public corridor in the Building to the Partnershiptransferred space, requires (vi) the consent Transferee agrees to use and occupy the Transferred space solely for the purpose specified in Section 4 and otherwise in accordance with this Lease, and (vii) Tenant acknowledges that, notwithstanding the Transfer, Tenant remains primarily liable for the performance of all the obligations of Tenant hereunder (including, without limitation, the obligation to pay all Rent), and Landlord shall be permitted to enforce this Lease against Tenant or authorization the Transferee, or all of them, without prior demand upon or proceeding in any way against any other party persons; and
(b) Tenant shall deliver to Landlord a counterpart of all instruments relative to the Transfer executed by all parties to such transaction (except such as have been duly obtainedLandlord), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(ivc) It is not an "investment company" or If Landlord to consents to a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940proposed Transfer, as amendedTenant shall pay to Landlord, Landlord’s reasonable costs, including, without limitation, reasonable attorneys’ fees, incurred in connection with such proposal.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject It shall be a condition to the satisfaction effectiveness of each of this Agreement that on or before the following conditions precedent (except those conditionsEffective Date, if any, that may Noteholder shall have approved and be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):receipt of:
(a) The Project Credit Facilities executed and filed organizational documents of ▇▇▇▇▇▇▇ ▇▇ and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.REIT;
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) final, fully-executed merger agreement by and all governmental consentsbetween ▇▇▇▇▇▇▇ Fund and ▇▇▇▇▇▇▇ ▇▇, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries final, fully-executed merger agreement by and other evidence of between ▇▇▇▇▇▇▇ Fund V REIT and the closing shall be provided to Cogentrix GP and Cogentrix LP.REIT;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.[intentionally omitted];
(d) The following representations or warranties shall be true confirmation that Borrower’s insurance policies (and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(iinsurance carriers) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (comply with any applicable requirements in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofDocuments, including, without limitation, the assignment amounts and types of the Project Documents insurance, loss payee and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.insurance certificates;
(e) The following representations a preliminary title report;
(f) a new title insurance policy or warranties shall be true title insurance policy update and correct in all respectsendorsements;
(g) property management contract between Borrower, as owner, and are hereby made ▇▇▇▇▇▇▇ ▇▇, as manager, and assignment thereof to VF Delaware Noteholder;
(h) an opinion of counsel, satisfactory to Noteholder as to form, substance and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions rendering attorney, opining to the Partnership:
(i) Each of Cogentrix GP validity and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance enforceability of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of and any other party Loan Documents contemplated hereby, the due execution and authority of Borrower, ▇▇▇▇▇▇▇ ▇▇ and the REIT, to execute and deliver this Agreement and perform their obligations under the Note and other Loan Documents, corporate and such other matters as reasonably requested by Noteholder;
(except such i) all credit, litigation, anti-terrorism, anti-money laundering and other searches, as have been duly obtained)Noteholder may require;
(j) certification from (i) Borrower certifying, or conflicts or will conflict with or result among other things reasonably requested by Noteholder, that the current financial position of Borrower has not materially and adversely changed from that reflected in a breach or violation of its charter documents or bylaws or any the financial statements most recently provided to Noteholder, and (ii) the REIT certifying, among other things reasonably requested by Noteholder, that after giving effect to the Mergers and the IPO, the financial position of the terms, conditions or provisions of any Requirement of Law applicable REIT and its consolidated subsidiaries shall not be materially and adversely different from that reflected in the proforma financial statements most recently provided to it or its assets or business.Noteholder;
(ivk) It is not an "investment company" or a company "controlled" by an "investment company" within Borrower shall have paid Noteholder all fees and all costs and expenses of Noteholder relative to this Agreement and the meaning of other Loan Documents and/or other documents executed pursuant hereto and any and all amendments, modifications and supplements thereto, and
(l) Borrower, the Investment Company Act of 1940, REIT and ▇▇▇▇▇▇▇ ▇▇ shall execute and/or deliver to Noteholder such other documents as amendedNoteholder shall reasonably request.
Appears in 1 contract
Sources: Consent Agreement (Rexford Industrial Realty, Inc.)
Conditions. The obligation of Cogentrix GP This Amendment shall not be effective unless and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):until:
(a) The Project Revolver Administrative Agent and Term Administrative Agent shall have received (i) this Amendment duly executed by Borrower, Guarantors, Revolver Administrative Agent, Term Administrative Agent, the Aggregate Majority Lenders, the Majority Lenders under the Revolving Credit Facilities Agreement and the Project Loan Documents shall have been approved by Majority Lenders under the Management Committee Term A Credit Agreement and the Project Loan Documents will be (ii) an Account Guaranty and Security Agreement executed by all parties thereto. An original executed copy each Subsidiary of each Project Loan Document will be delivered to Cogentrix GP and Borrower that is a copy thereof delivered to Cogentrix LP Cash Pledgor as soon as available.of the effective date of this Amendment;
(b) All conditions Revolver Administrative Agent and Term A Administrative Agent shall have received an officer’s certificate of (i) Borrower certifying (A) as to the closing constituent documents of Borrower (or, if applicable, as to the absence of any changes thereto since the date such constituent documents of Borrower were last certified to Revolver Administrative Agent and Term A Administrative Agent) and (B) resolutions adopted by the Board of Directors of Borrower authorizing the execution, delivery, and performance of the Construction/Term Facility shall have occurred or been satisfied Amendment Documents and (other than evidence ii) each Subsidiary of Borrower that is a Cash Pledgor as of the capital contributions described in Section 3.2 have been madeeffective date of this Amendment certifying (A) the constituent documents of such Cash Pledgor, (B) the incumbency of officers of such Cash Pledgor authorized to execute the Account Guaranty and all governmental consentsSecurity Agreement on behalf of such Cash Pledgor, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received (C) resolutions adopted by the Construction/Term Lender as a condition to Board of Directors or similar governing body of such Cash Pledgor authorizing the funding execution, delivery, and performance of the Construction/Term Facility Account Guaranty and Security Agreement executed by such Cash Pledgor, and (D) certificates of existence and good standing, certified as of a recent date by the Revolving Facility shall have been delivered or received. A copy Secretary of all such deliveries and other evidence State of the closing shall be provided to Cogentrix GP and Cogentrix LP.State of formation of such Cash Pledgor;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) Revolver Administrative Agent shall have been made to received (i) such fees and expenses in such amounts and at such times as heretofore set forth in a letter agreement between Borrower, Revolver Administrative Agent and Banc of America Securities LLC, and (ii) (without duplication of amounts payable under clause (i) above), such other reasonable out-of-pocket fees and expenses of the satisfaction of Cogentrix GP Revolver Administrative Agent as may be then due and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them payable by VF Delaware.Borrower under the Revolving Credit Agreement;
(d) The following representations or warranties Term A Administrative Agent shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
have received (i) Each such fees and expenses in such amounts and at such times as heretofore set forth in a letter agreement between Borrower, Term A Administrative Agent and Banc of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this AgreementAmerica Securities LLC, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement (without duplication of amounts payable under clause (i) above), such other reasonable out-of-pocket fees and expenses of the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except Term A Administrative Agent as enforceability may be limited then due and payable by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting Borrower under the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.Term A Credit Agreement;
(e) The following representations or warranties Cash Pledgors shall be true and correct in all respectshave deposited into the Collateral Cash Accounts an amount equal to the Required Cash Collateral Amount, and are hereby made Administrative Agent shall have a first priority lien, for the ratable benefit of each Issuing Bank and the Revolver Lenders, in and to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:each Collateral Cash Account;
(if) Each of Cogentrix GP and Cogentrix LP (A) is Term A Administrative Agent shall have received from Borrower a corporation duly organized, validly existing and in good standing under the laws prepayment of the State outstanding principal balance of Delawarethe Term A Loans in an amount equal to $33,416,691.21, (B) has full power and authority and together with accrued, but unpaid, interest thereon, such that the legal right to incur Principal Debt of the obligations provided for Term A Loans shall not exceed $3,712,965.69 in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance aggregate as of the effective date of this Agreement.Amendment; and
(iig) This Agreement Revolver Administrative Agent shall have received from Borrower a prepayment of the Outstanding Amount of all Loans (under and Project Loan Documents to which it is a party have been duly authorizedas defined in the Revolving Credit Agreement) together with accrued, executed and delivered by Cogentrix GP and Cogentrix LP and constitute but unpaid, interest thereon, such that the legal, valid and binding obligations Outstanding Amount of each all such Loans shall not exceed $0.00 in the aggregate as of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP effective date of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessAmendment.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Revolving Credit Agreement and Term Loan a Credit Agreement (Standard Pacific Corp /De/)
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are 3.1 This Agreement shall be expressly subject to the satisfaction condition that the Bank shall have received on or before the Effective Date in form and substance reasonably satisfactory to the Bank and its legal advisors:
(a) a certified true copy of the certificate of good standing of the Borrowers and the Corporate Guarantors or other equivalent document issued by the competent authorities of the place of its formation;
(b) a recent certificate of incumbency of the Borrowers and the Corporate Guarantors signed by the secretary or a director thereof;
(c) certified and duly legalised copies of resolutions of the Directors and the members of the New Corporate Guarantor and (and of any corporate shareholder thereof) approving this Agreement and any relevant Additional Security Documents to which each is or is to be a party and authorising appropriate officers or attorneys in fact to execute the same and to sign all notices required to be given under this Agreement on its behalf or evidence of such approvals and authorisations as shall be acceptable to the Bank;
(d) the original of the power(s) of attorney issued in favour of the person(s) who shall execute this Agreement and the Additional Security Documents on behalf of the New Corporate Guarantor;
(e) favourable legal opinions from lawyers acceptable to the Bank and its legal advisors on such matters concerning the laws of The ▇▇▇▇▇▇▇▇ Islands and such other applicable jurisdiction(s) as the Bank shall reasonably require;
(f) duly executed originals of each of the following Additional Security Documents by the respective parties thereto and, where appropriate, duly registered in favour of the Bank;
(g) certified true copies of (aa) the corporate resolutions of the Board of Directors of the Existing Corporate Guarantor and the New Corporate Guarantor approving the sale by the Existing Corporate Guarantor and the purchase by the New Corporate Guarantor of the stock of each Borrower (bb) the amended and restated limited liability company agreements relating to each of the Borrowers specifying the New Corporate Guarantor as the sole holder of the membership interests in each such Borrower and any other document pertaining to the transfer of all the issued and outstanding share capital of the Borrowers from the Existing Corporate Guarantor to the New Corporate Guarantor and (c) the new shares certificates of each Borrower specifying the New Corporate Guarantor as owner thereof;
(h) a duly certified true copy of the Articles of Incorporation and By-Laws or of any other constitutional documents, as the case may be, and of the organisational minutes of the New Corporate Guarantor.
3.2 The Bank shall, upon receipt of the conditions precedent (except those conditionsreferred to in clause 3.1, if anypromptly deliver to the Borrowers a notice substantially in the form set out in Schedule 1 to this Agreement advising the Borrowers of the Effective Date, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be duly executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP it and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing Existing Guarantor a deed of release substantially in the Construction/Term Facility shall have occurred or been satisfied (other than evidence that form agreed between the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility Bank and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPExisting Corporate Gurantor.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Loan Agreement (Poseidon Containers Holdings Corp.)
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to make any other conditions set forth herein or required by Lender, the contributions described in Section 3.2 following are subject conditions precedent that must be satisfied prior to the satisfaction of each closing of the following conditions precedent Transfer and Assumption (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriatethe “Closing”):
(a) The Project Credit Facilities execution, acknowledgment, delivery and recordation of this Agreement by all of the parties concurrently with the Closing, and the Project execution, acknowledgement and delivery of all other agreements, instruments and documents required by Lender hereunder concurrently with and in connection with the Closing, including but not limited to the following (collectively, the “Supplemental Loan Documents Documents”): (i) a new Guaranty Agreement from Buyer Principal in substantially the same form as the Guaranty (the “New Guaranty”) (ii) a new Environmental Indemnity Agreement in substantially the same form as the Environmental Indemnity from Buyer and Buyer Principal (the “New Environmental Indemnity”) (iii) a new Assignment of Management Agreement and Subordination of Management Fees from Inland National Real Estate Services, LLC, a Delaware limited liability company (the “Manager”), Lender and Buyer in substantially the same form as the Assignment (the “New Assignment”), (iv) a new Joinder Agreement from Buyer Principal in substantially the same form as the Joinder (the “New Joinder”) and (v) a Cash Management Agreement by and among Borrower, Lender, Manager and PNC Bank, National Association, a national banking association, replacing the DACA, in a form that shall have been be approved by Lender (the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available“CMA”).
(b) All conditions The execution, delivery and recordation or filing, as applicable, of one more new financing statements, or amendments to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are existing financing statements as required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPat Closing.
(c) The contribution Buyer’s delivery to Lender of satisfactory evidence that all insurance over the Property required by VF Delaware contemplated by Section 3.1(athe Loan Documents (the “Required Insurance”) shall have been made to is in full force and effect as of the satisfaction of Cogentrix GP Closing, with all required premiums paid, and Cogentrix LP and evidence thereof reasonably contains a mortgagee’s clause (the “Mortgagee’s Clause”) satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF DelawareLender in favor of Lender, its successors and/or assigns, c/o Midland Loan Services, Master Servicer, 10851 M▇▇▇▇▇, S▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇; re: Loan Number 030286897.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
Lender’s receipt of satisfactory Title Endorsements (i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VFhereinafter defined), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations full release and reconveyance of any other liens or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to monetary encumbrances against the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this AgreementProperty.
(iif) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute Lender’s receipt of all of the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyRequired Payments (hereinafter defined).
(iiig) Neither The satisfaction of all other conditions contained in the execution, delivery or performance approval letter issued by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it the Lender in connection with the terms Transfer and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessAssumption.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Consent and Assumption Agreement With Release (Inland Real Estate Income Trust, Inc.)
Conditions. The obligation of Cogentrix GP the Lenders to execute and Cogentrix LP to make the contributions described in Section 3.2 are perform this First Amendment shall be subject to the full satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP on or Cogentrix LP, as appropriate):before the date of execution of this First Amendment:
(a) The Project Credit Facilities Copies, certified as of the date of execution of this First Amendment, of such company documents and resolutions of Company as Lenders may request evidencing necessary action by Company to obtain necessary authorization for the Project Loan Documents shall have been approved by the Management Committee execution and the Project Loan Documents will be executed by performance of this First Amendment and all parties thereto. An original executed copy of each Project Loan Document will be other agreements or documents delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP pursuant hereto as soon as availableLenders may reasonably request.
(b) All conditions to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility This First Amendment shall have been duly executed by each Borrower and delivered or received. A copy of all such deliveries to Lenders and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPexecuted by Lenders.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) Promissory Notes payable to each Lender in form and substance satisfactory to the Administrative Agent shall have been made duly executed by Company and delivered to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF DelawareLenders.
(d) The Reaffirmation of Guaranty and Collateral Agreement in form and substance satisfactory to the Administrative Agent shall have been duly executed by Company and MOAC and delivered to Administrative Agent.
(e) The Second Amendment to Subordination and Intercreditor Agreement in form and substance satisfactory to the Administrative Agent shall have been duly executed by the Company and the Subordinated Note Agent and delivered to Administrative Agent.
(f) Receipt by Administrative Agent of an amendment to the Subordinated Note Purchase Agreement and the Subordinated Notes, acceptable to the Administrative Agent in form and substance in its sole discretion, which shall include amendments to the financial covenants to match the financial covenants set forth herein.
(g) Receipt by Administrative Agent of opinions of counsel for each Loan Party, including local counsel reasonably requested by the Administrative Agent.
(h) Receipt by Administrative Agent of a Solvency Certificate executed by a Senior Officer of the Company.
(i) Receipt by Administrative Agent of certified copies of Uniform Commercial Code search reports dated a date reasonably near to the First Amendment Effective Date, listing all effective financing statements which name any Loan Party (under their present names and any previous names) as debtors, together with copies of such financing statements.
(j) Receipt by Administrative Agent of a Borrowing Base Certificate dated as of the First Amendment Effective Date.
(k) Receipt by Administrative Agent of a certificate executed by an officer of the Company on behalf of the Company certifying the matters set forth in Section 4(l) of this First Amendment as of the First Amendment Effective Date.
(l) The following statements shall be true and correct:
(i) the representations or and warranties of each Loan Party set forth in this First Amendment and the other Loan Documents shall be true and correct in all respects, and are hereby respects with the same effect as if then made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions (except to the Partnership:
(i) Each of VF and VF Delaware (A) is extent stated to relate to a limited liability company duly organizedspecific earlier date, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.such earlier date); and
(ii) This Agreement no Event of Default or Unmatured Event of Default shall have then occurred and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallycontinuing.
(iiim) Neither Receipt by Administrative Agent of the execution, delivery or performance by Cogentrix GP commitment fee in the aggregate amount of Seventy-Five Thousand and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party No/100 Dollars (except such as have been duly obtained$75,000.00), or conflicts or will conflict with or result payable to each Lender in a breach or violation of proportion to its charter documents or bylaws or any share of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessincrease in the Revolving Commitment effectuated by this First Amendment.
(ivn) It is not an "investment company" or a company "controlled" Company shall have paid all costs and expenses incurred by an "investment company" within the meaning Lenders in connection with the negotiation, preparation and closing of this First Amendment and the Investment Company Act of 1940other documents and agreements delivered pursuant hereto, including the reasonable attorneys’ fees and out-of-pocket expenses.
(o) Administrative Agent shall have received such additional agreements, documents, opinions and certifications, fully executed by Company, as amendedmay be reasonably requested by Administrative Agent.
Appears in 1 contract
Conditions. 4.1 The obligation agreement of Cogentrix GP and Cogentrix LP to make the contributions described Creditor Parties contained in Section 3.2 are Clause 3.1 of this Second Supplemental Agreement shall be subject to the satisfaction of each following condition that the Creditor Parties shall have received in form and substance satisfactory to the Security Trustee on behalf of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP Lenders and their legal advisers on or Cogentrix LP, as appropriate):before the signature hereof:
(a) The Project Credit Facilities a certificate of a Director of the Borrower confirming the names and offices of all the Project Loan Documents shall Directors and/or Officers of the Borrower, and confirming that the Borrower’s incorporation and constitutional documents have not been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.altered or amended since 23 March 2009;
(b) All conditions to the closing true and complete copies of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as resolutions passed at a condition to the funding meeting of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy Board of all such deliveries and other evidence Directors of the closing shall be provided Borrower, authorising and approving the execution of this Second Supplemental Agreement and any other document or action to Cogentrix GP which the Borrower is a party, and Cogentrix LP.authorising its appropriate officer or officers or other representatives to execute the same on its behalf;
(c) The contribution the original of any power of attorney issued by VF Delaware contemplated by Section 3.1(a) shall have been made the Borrower pursuant to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.such resolutions aforesaid;
(d) The following representations or warranties shall be true and correct in all respectscomplete copies of the resolutions passed at a meeting of the Board of Directors of the Corporate Guarantor, authorising and approving the execution of the Second Mortgage Addendum and any other document or action to which the Corporate Guarantor is a party, and are hereby made authorising its appropriate officer or officers or other representatives to Cogentrix GP execute the same on its behalf;
(e) the original of any power of attorney issued by the Corporate Guarantor pursuant to such resolutions aforesaid;
(f) 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 and Cogentrix LP by VF Delaware the Second Mortgage Addendum(including without limitation) all necessary governmental and VF other official approvals and consents in such pertinent jurisdictions as an inducement to their making capital contributions to the Partnership:Security Trustee deems appropriate;
(g) a duly executed original of this Second Supplemental Agreement and the Second Mortgage Addendum, together with evidence that the Second Mortgage Addendum has been duly registered against the Ship in accordance with the laws of the Republic of The ▇▇▇▇▇▇▇▇ Islands;
(h) such legal opinions as the Security Trustee may require in respect of the matters contained in this Second Supplemental Agreement and the Second Mortgage Addendum;
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (executed confirmation from each Security Party in the case form of VF Delaware) or 1% by VF Delaware Schedule 3 hereto, confirming that (in notwithstanding the case of VF), (B) has full power and authority and amendments made to the legal right Loan Agreement pursuant to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Finance Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, its obligations thereunder remain valid and binding obligations binding; and
(j) receipt by the Lenders of each of VF Delaware and VF enforceable against it the expenses referred to in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyClause 7.1.
(iii) Neither 4.2 The agreement of the execution, delivery or performance by VF Delaware or VF Creditor Parties contained in Clause 3.1 of this Second Supplemental Agreement or any shall be further subject to the condition that the Creditor Parties shall receive evidence satisfactory to the Agent of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment agreement of the Project Documents relevant banks and Project Assets financial institutions to similar amendments (as set out in Clause 5 hereof) to the Partnership, requires the consent or authorization of any other party (except such loan facilities currently in place with Paragon Shipping Inc. as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" borrower within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of 90 days from the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Second Supplemental Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation of Cogentrix GP and Cogentrix LP to make This Amendment shall not become effective until the contributions described in Section 3.2 are subject to the satisfaction of date on which each of the following conditions precedent is satisfied (except those conditions, if any, that may be specifically or waived in writing by Cogentrix GP or Cogentrix LP, as appropriateaccordance with Section 9.02 of the Credit Agreement) (the “Effective Date”):
(a) The Project Credit Facilities the Administrative Agent (or its counsel) has received from the Loan Parties and all of the Project Loan Documents shall have been approved by Lenders either (1) a counterpart of this Amendment signed on behalf of such party or (2) written evidence satisfactory to the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy Administrative Agent (which may include telecopy or e-mail transmission of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.signed signature page of this Amendment) that such party has signed counterparts of this Amendment,
(b) All conditions the Administrative Agent shall have received each of the following, each in form and substance satisfactory to the closing Administrative Agent:
(1) executed security agreements from the Parent and from the Restricted Subsidiaries which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC, respectively;
(2) executed Guaranty from the Restricted Subsidiaries which are Material Domestic Subsidiaries (amending and restating the existing Guaranty);
(3) executed collateral agency agreement from the Parent, the Restricted Subsidiaries which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC and GSO Tetra Holdings LP;
(4) certificates representing all of the Construction/Term Facility shall have occurred outstanding Equity Interests owned by Parent or been satisfied by any Restricted Subsidiary which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC (other than Equity Interests included in the Excluded Assets) and powers of attorney, endorsed in blank, with respect to such certificates;
(5) the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Parent and each Restricted Subsidiary which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC in such jurisdictions as the Administrative Agent may require and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the capital contributions described in Section 3.2 Liens indicated by such financing statements (or similar documents) are permitted by this Agreement or have been madereleased; and
(6) all documents and all governmental consentsinstruments, approvalsincluding Uniform Commercial Code financing statements, permits and licenses and other deliveries in connection with required by law or reasonably requested by the Project which are required Administrative Agent to be received by filed, registered or recorded to create or perfect the Construction/Term Lender as a condition Liens intended to be created under the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LPSecurity Agreements.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) the Administrative Agent shall have been made received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the satisfaction of Cogentrix GP organization, existence and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of DelawareParent and the Restricted Subsidiaries which are Domestic Subsidiaries, CSI Compressco GP Inc. and CSI Compressco Investment LLC, the ownership authorization of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement Amendment and the Project Documents and Project related Loan Documents to which it is a party.
(ii) This Agreement by the Parent and the Project Documents Restricted Subsidiaries which are Domestic Subsidiaries, CSI Compressco GP Inc. and Project Loan Documents CSI Compressco Investment LLC and any other legal matters relating to which it is a party this Amendment. The Administrative Agent shall give, or cause to be given, prompt notice to the Parent and the Lenders as to whether the conditions specified in the immediately preceding sentence have been duly authorized, executed satisfied by the deadline set forth therein and delivered by VF Delaware and VF and constitute shall specify the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability Effective Date; such notice may be limited oral, telephonic, written (including faxed) or by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallye-mail.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation This Amendment shall become effective on the date (the "AMENDMENT EFFECTIVE DATE") as of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject to the satisfaction of which each of the following conditions precedent (except those conditions, if any, that may be specifically waived shall have been satisfied in writing by Cogentrix GP or Cogentrix LP, as appropriate):a manner satisfactory to the Bank:
(a) The Project Credit Facilities and the Project Loan Documents Bank shall have been approved received the following documents each in form and substance reasonably satisfactory to the Bank:
(i) this Amendment, duly executed by the Management Committee Borrowers;
(ii) the Acknowledgment and Consent, substantially in the Project Loan Documents will be form attached hereto as Exhibit I, duly executed by all parties thereto. An DWG and PF;
(iii) the Second Amended and Restated Revolving A Note, dated the Amendment Effective Date, in substantially the form attached hereto as Exhibit II, made by the Borrowers to the order of the Bank and in the original executed copy principal amount of each Project Loan Document will be delivered $37,500,000 (the "REVOLVING A NOTE");
(iv) the Second Amended and Restated Revolving B Note, dated the Amendment Effective Date, in substantially the form attached hereto as Exhibit III and made by the Borrowers to Cogentrix GP the order of the Bank and a copy thereof delivered in the original principal amount of $12,500,000 (the "REVOLVING B NOTE");
(v) UCC Financing Statement Amendment, amending Schedule A to Cogentrix LP UCC-1 Financing Statement.
(vi) an opinion, dated the Amendment Effective Date, of the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to the Borrowers, ▇▇ form and substanc▇ ▇▇▇▇▇nab▇▇ ▇▇▇▇▇factory to the Bank and its counsel; and
(vii) such other agreements, instruments, opinions and other documents as soon as availablethe Bank may reasonably request.
(b) All conditions The Bank shall have received all fees and other amounts due and payable to the closing of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofBank, including, without limitation, the assignment Commitment Fee referred to in Section 3 hereof and all legal fees, costs and expenses of the Project Documents Bank in connection with the Credit Agreement, this Amendment and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.related agreements and documents
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(vi) The representations and warranties of VF Delaware or VF or any of their respective Affiliates contained in or pursuant to any Section 4 hereof, in Article IV of the Project Documents Credit Agreement and in each other Loan Document and certificate or Project Loan Documents other writing delivered to the Bank pursuant hereto on or prior to the Amendment Effective Date are true and correct on and as of the Amendment Effective Date as though made on and as of the Amendment Effective Date, except to the extent that any such representation and warranty expressly relates solely to an earlier date hereof (in which case such representation and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties warranty shall be true and correct in all respects, on and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
such earlier date); (ii) This Agreement no Event of Default or Default has occurred and Project is continuing or would result from this Amendment; and (iii) since the date of the Credit Agreement, no material adverse change in the financial condition, properties or prospects of any Loan Documents to which it Party has occurred and is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute continuing on the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their termsAmendment Effective Date, except as enforceability may be limited previously disclosed in writing to the Bank and consented to in writing by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyBank.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Pledge and Security Agreement (Triarc Companies Inc)
Conditions. The obligation effectiveness of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are this Amendment is subject to the satisfaction of each of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate)::
(a) The Project Credit Facilities and the Project Loan Documents Borrowers shall have been approved executed and delivered to the Collateral Agent (or shall have caused to be executed and delivered to the Collateral Agent by the Management Committee appropriate Persons), the following, in each case in form and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions substance satisfactory to the closing of the Construction/Collateral Agent and Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the PartnershipLoan D Lenders:
(i) Each a Secured Promissory Note payable to the order of VF each of the Term Loan D Lenders, in the original principal amount equal to such Lender’s Term Loan D Commitment;
(ii) an amendment to the Subordination Agreement acknowledging and VF Delaware permitting the increased Aggregate Term Loan Commitments;
(Aiii) Certified copies (attached as required in Part A of the form attached as Schedule 3.01 to the Credit Agreement) of all corporate or other action taken by each Borrower and the Equity Holders of each Borrower authorizing the execution and delivery of the Notes to which it is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF party (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken including all necessary action to authorize resolutions authorizing the execution, delivery and performance of this Agreement Amendment by such Borrower and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement transactions contemplated hereby, the incurrence of the Obligations and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any granting of the Project Documents or Project Liens contemplated by the Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires extent required by the consent or authorization of any other party (except such as Organizational Documents applicable thereto) which have been duly obtained), properly adopted and have not been modified or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.amended;
(iv) It is not an "investment company" Such other supporting documents and certificates as the Collateral Agent, the Administrative Agent, or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amendedLenders may reasonably request.
(vb) Collateral Agent shall have received the favorable written opinion of general corporate counsel to the Borrowers dated as of the date hereof, addressed to the Collateral Agent, the Administrative Agent, and Lenders and reasonably satisfactory to the Collateral Agent in scope and substance; and
(c) The representations and warranties of VF Delaware or VF or any of their respective each Borrower and its Affiliates set forth in or pursuant to any of the Project Documents or Project Credit Agreement, as amended hereby, and in the other Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respectsmaterial respects on and as of the effective date of this Amendment and each Borrower shall have performed all obligations which were to have been performed by it hereunder prior to the effective date of this Amendment (unless waived by the Collateral Agent or the Required Lenders).
(d) As of the effective date of this Amendment, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP since the dates of those certain Projections attached as an inducement to their making capital contributions Schedule 4.17 to the Partnership:Credit Agreement and other financial documents delivered to the Collateral Agent prior thereto, no event or circumstance shall have occurred which could reasonably be expected to have a Material Adverse Effect.
(e) Borrowers shall have paid (i) Each to the Administrative Agent on or before the effective date of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under this Amendment for the laws account of the State Administrative Agent and the Term Loan D Lenders, the fees set forth in a certain Fee Letter of Delawareeven date herewith, (Bii) has full power all other fees owed to the Collateral Agent, the Administrative Agent, the Lenders and authority and their respective Affiliates pursuant to the legal right to incur the obligations provided for in this Credit Agreement, as amended hereby, and (Ciii) has taken all necessary action legal fees and expenses of counsel to authorize Collateral Agent, Administrative Agent and Lenders incurred through the execution, delivery and performance of this Agreementdate hereof.
(iif) This Agreement and Project Loan Documents All legal matters incident to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may transactions contemplated hereby shall be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting reasonably satisfactory to counsel for the rights of creditors generallyCollateral Agent.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Conditions. The obligation Notwithstanding any other provision of Cogentrix GP and Cogentrix LP to make the contributions described in Section 3.2 are subject this Agreement to the satisfaction contrary, the County Board shall have no obligation to disburse any of each the Federal CDBG Loan funds to the Borrower unless and until all of the following conditions precedent (except those conditions, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):collectively the “Funding Conditions”) have been satisfied:
(a1) The Project Credit Facilities and the Project Loan Documents Borrower shall have been approved by provided the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original County Attorney with an executed copy of each the Agreement of Purchase and Sale between the Borrower and the Shell Site Seller; and
(2) Borrower shall have provided the County Attorney with an executed copy of the Agreement of Purchase and Sale between the Borrower and the ▇▇▇▇▇▇ ▇▇▇▇ Site Seller; and
(3) Borrower shall have applied for all required permits and discretionary land use entitlements necessary to allow the Borrower to demolish the Columbia Pike Food Mart and Shell Gas Station located on the Shell Site Property; and
(4) Borrower shall have provided the County Manager with written confirmation that the Borrower has secured a commitment for additional financing, if required, to cover the full costs of the CDBG-Eligible Project Loan Document will be delivered to Cogentrix GP and Activities; and
(5) Borrower shall have provided the County Attorney with a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions of Borrower’s organizational documents satisfactory to the closing of County Attorney documenting the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority of Borrower to enter into and the legal right to incur the perform its obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of under this Agreement and the Project Documents and Project CDBG Loan Documents Documents; provided, that the Borrower’s possession of title to which it is a party.the ▇▇▇▇▇▇ ▇▇▇▇ Property need not be precedent for disbursement of the Federal CDBG Loan funds; and
(ii6) This Borrower shall have provided the County Attorney with a copy of a resolution or other corporate document satisfactory to the County Attorney authorizing Borrower’s authority to acquire and own the Required Project Property and construct and operate The Shell Site Project and to execute this Agreement and the Project Documents and Project CDBG Loan Documents to which it is a party Documents; and
(7) Borrower shall have been duly authorized, executed and delivered by VF Delaware to the County Attorney all documents, instruments, and VF and constitute policies required under the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.CDBG Loan Documents; and
(iii) Neither 8) Borrower shall have provided to the execution, delivery or performance by VF Delaware or VF County Attorney evidence of the insurance coverage meeting the requirements of this Agreement; and
(9) Borrower shall certify in writing to the County Attorney that there exists no Event of Default nor any act, failure, omission or condition that would constitute an Event of Default under this Agreement or and the CDBG Loan Documents; and
(10) Borrower shall have provided to the County Attorney with a legal opinion from the Borrower’s Attorney addressed to the County Board, in substantially the form attached hereto as Exhibit G, opining, among other things, that the Borrower is in full compliance with all legal requirements in its formation and execution of the CDBG Loan Documents. In the event that any of the Project Documents Funding Conditions are not satisfied on or Project Loan Documents to which it is a partybefore the Effective Date, nor compliance or such later date as may be approved in writing by it with the terms County Attorney in the sole and provisions hereof or thereof, including, without limitationabsolute discretion of the County Attorney, the assignment of the Project Documents and Project Assets County Board may terminate this Agreement by delivering written notice to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessBorrower.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
(i) Each of Cogentrix GP and Cogentrix LP (A) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
Appears in 1 contract
Sources: Community Development Block Grant Subrecipient and Loan Agreement
Conditions. The obligation of Cogentrix GP and Cogentrix LP In addition to any other conditions to the Loan set out in the Agreement, NBE will not make the contributions described Loan until NBE shall have received from Borrower, in Section 3.2 are subject form and substance satisfactory to NBE, such documents, and completion of such other matters, as NBE may reasonably deem necessary or appropriate, including that there shall be no discovery of any facts or circumstances which would, as determined by NBE in its sole discretion, negatively affect or be reasonably expected to negatively affect the collectability of the Obligations, NBE’s security interest in Borrower’s Collateral or the value thereof. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ agrees to deliver to NBE each item required to be delivered to NBE under the Agreement as a condition precedent to the satisfaction Loan. Borrower expressly agrees that a Loan made prior to the receipt by NBE of each any such item shall not constitute a waiver by NBE of Borrower’s obligation to deliver such item, and the making of the following Loan in the absence of a required item shall be in NBE’s sole discretion. Without limiting the foregoing, as conditions precedent (except those conditionsto the Loan, if anyBorrower shall provide, that may be specifically waived in writing duly executed by Cogentrix GP or Cogentrix LPthe parties thereto, as appropriate):applicable:
(a) The Project Credit Facilities and the Project Loan Documents shall have been approved by the Management Committee and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.Agreement (including this Schedule);
(b) All conditions to the closing a Control Agreement among Borrower, NBE and US Bank, N.A. in respect of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made▇▇▇▇▇▇▇▇’s Deposit Account(s) and all governmental consentswith US Bank, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.N.A.;
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction an Intellectual Property Security Agreement and related Collateral Agreements and Notices in respect of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.Borrower’s Intellectual Property;
(d) The following representations or warranties shall be true and correct certified copies of ▇▇▇▇▇▇▇▇’s Constitutional Documents, together with a good standing certificate in all respectsrespect of Borrower certified by the Secretary of State Maryland, together with good standing or foreign qualification certificates from the states of Wisconsin and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF Pennsylvania, each of the above as an inducement to their making capital contributions of a date no earlier than sixty (60) days prior to the Partnership:Effective Date;
(ie) Each a Certificate of VF Incumbency and VF Delaware (A) is a limited liability company duly organizedSecretary’s Certificate certifying the Constitutional Documents of Borrower, validly existing and in good standing under the laws together with borrowing resolutions of the State Board of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize Borrower authorizing the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it such Borrower is a party.;
(iif) This Agreement no later than two (2) Business Days prior to the Effective Date, a duly-executed payoff letter between Borrower and US Bank, N.A. (to the extent any monetary obligations are unpaid outstanding), together with evidence of the termination of all agreements in respect of such obligations, and the Project Documents termination of all Liens in respect of such obligations (including copies of all instruments and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.filings evidencing such terminations);
(iiig) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement or any evidence of the Project Documents or Project Loan Documents to which it is a party, nor compliance by it with termination of all Liens of record in respect of ▇▇▇▇▇▇▇▇ (including in Maryland and Wisconsin);
(h) the terms and provisions hereof or thereof, including, without limitation, the assignment of the Project Documents and Project Assets to the Partnership, requires the consent or authorization of any other party (except such as have been duly obtainedInvestor Subordination Agreement(s), or conflicts or will conflict with or result in a breach or violation duly executed by the each holder of its charter documents or by-laws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LP, mutatis mutandis, as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:Borrower Indebtedness;
(i) Each a Solvency Certificate, in agreed form, duly executed by a Responsible Officer;
(j) certified copies, dated as of Cogentrix GP a recent date, of Security Instrument searches, as NBE shall request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such Security Instruments either constitute Permitted Liens or have been terminated or released;
(k) the Representations, duly executed by ▇▇▇▇▇▇▇▇;
(l) landlord consents executed in favor of NBE by ▇▇▇▇▇▇▇▇’s principal office lessor in respect of its premises in Madison, Wisconsin and, if required by NBE, each other premises where Borrower holds Collateral with a fair value in excess of $10,000, and Cogentrix LP warehouseman’s/bailee waivers in respect of third-party premises where Collateral with a fair value in excess of $10,000 is stored or housed, including Borrower’s facility at Embedtek (AWaukesha, Wisconsin);
(m) is a corporation duly organized, validly existing and evidence satisfactory to NBE in good standing under appropriate form that the laws insurance policies and/or endorsements in favor of NBE required pursuant to Section 4.3 of the State Agreement are in full force and effect;
(n) payment of Delaware, the Loan Commitment Fee specified in Section 3 of this Schedule and payment of NBE’s Lender Expenses incurred in connection with the Loan;
(Bo) evidence satisfactory to NBE that the condition set forth in Section 8(d) of this Schedule (Effective Date Equity Requirement) has full power and authority and been satisfied;
(p) evidence satisfactory to NBE that the legal right to incur the obligations provided for condition set forth in Section 8(e) of this Agreement, and Schedule (CAffirmative Majority Disinterested Director Approval Requirement) has taken been satisfied;
(q) evidence satisfactory to NBE that the condition set forth in Section 8(f) of this Schedule (Director Resignation Requirement) has been satisfied;
(r) as a condition subsequent to be satisfied within ninety (90) days of the Effective Date, Borrower shall diligently pursue and procure through its all necessary action reasonable commercial efforts a waiver in favor of NBE from Equinix for Borrower property co-located in Equinix premises;
(s) any third-party consents required in order for Borrower to authorize lawfully enter into and perform the executionLoan Documents without breaching third-party obligations; and
(t) to the extent that the conditions to the Agreement have not been completed as of the Effective Date, delivery and a post-closing obligations letter in NBE’s customary form by which NBE waives or defers performance of this Agreement.
(ii) This Agreement and Project Loan Documents such conditions as NBE is willing to which it is a party have been duly authorized, executed and delivered by Cogentrix GP and Cogentrix LP and constitute the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it defer in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.sole business discretion. [Signature Page Follows]
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Conditions. The obligation of Cogentrix GP Landlord's obligations to give the Improvement Allowance to Tenant and Cogentrix LP Tenant's entitlement to make the contributions described in Section 3.2 Rent Credit are expressly subject to the satisfaction of each conditions that Tenant does not object to (except the previously filed objection which is deemed withdrawn hereby), or raise any new objections, conditions or requirements with respect to, the Settlement Agreement, the Joint Plan, the Travelers' Plan or any other transfer of the following conditions precedent (except those conditionsBuilding to Travelers or its designee, if any, that may be specifically waived in writing by Cogentrix GP or Cogentrix LP, as appropriate):
(a) The Project Credit Facilities and/or and the Project Loan Documents shall have been approved by the Management Committee assignment and the Project Loan Documents will be executed by all parties thereto. An original executed copy of each Project Loan Document will be delivered to Cogentrix GP and a copy thereof delivered to Cogentrix LP as soon as available.
(b) All conditions to the closing assumption of the Construction/Term Facility shall have occurred or been satisfied (other than evidence that the capital contributions described in Section 3.2 have been made) and all governmental consents, approvals, permits and licenses and other deliveries in connection with the Project which are required to be received by the Construction/Term Lender as a condition to the funding of the Construction/Term Facility and the Revolving Facility shall have been delivered or received. A copy of all such deliveries and other evidence of the closing shall be provided to Cogentrix GP and Cogentrix LP.
(c) The contribution by VF Delaware contemplated by Section 3.1(a) shall have been made to the satisfaction of Cogentrix GP and Cogentrix LP and evidence thereof reasonably satisfactory to Cogentrix GP and Cogentrix LP shall have been provided to them by VF Delaware.
(d) The following representations or warranties shall be true and correct in all respects, and are hereby made to Cogentrix GP and Cogentrix LP by VF Delaware and VF as an inducement to their making capital contributions to the Partnership:
(i) Each of VF and VF Delaware (A) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, the ownership of which is 99% by Agro Power and 1% by VF (in the case of VF Delaware) or 1% by VF Delaware (in the case of VF), (B) has full power and authority and the legal right to incur the obligations provided for in this Agreement, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the Project Documents and Project Loan Documents to which it is a party.
(ii) This Agreement and the Project Documents and Project Loan Documents to which it is a party have been duly authorized, executed and delivered by VF Delaware and VF and constitute the legal, valid and binding obligations of each of VF Delaware and VF enforceable against it Lease in accordance with their termsthe terms of the Joint Plan, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally.
(iii) Neither the execution, delivery or performance by VF Delaware or VF of this Agreement Travelers' Plan or any other transfer of the Project Documents Building to Travelers or Project Loan Documents to which it is a party, nor compliance by it with the terms and provisions hereof or thereofits designee, including, without limitation, the assignment of the Project Documents and Project Assets Lease to Travelers, or its designee, pursuant thereto on the Effective Date or the transfer of the Building to Travelers or its designee, other than an objection that Tenant is entitled to make pursuant to the Partnershiplast sentence of Section 3(b)(iii) of this Amendment. In the event that at the time the Improvement Allowance and interest thereon becomes payable, requires Tenant is in default in the consent or authorization payment of any other party monetary amount to Landlord and such default continues uncured for five (except 5) days after written notice of such as have default has been duly obtained)sent by Landlord to Tenant or, in the event Tenant files or conflicts or will conflict with or result in has filed against it a breach or violation of its charter documents or by-laws or any of petition for relief under the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or businessUnited States Bankruptcy Code (11 U.S.C. Sections 101 ET SEQ.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(v) The representations and warranties of VF Delaware or VF or any of their respective Affiliates in or pursuant to any of the Project Documents or Project Loan Documents are true and correct as of the date hereof and are hereby deemed to be made to Cogentrix GP and Cogentrix LPother insolvency proceedings (collectively, mutatis mutandis"Insolvency Proceeding"), as if fully set forth herein.
(e) The following representations or warranties shall be true and correct in all respects, and are hereby made to VF Delaware and VF by Cogentrix GP and Cogentrix LP as an inducement to their making capital contributions to the Partnership:
Landlord may (i) Each suspend the payment of Cogentrix GP and Cogentrix LP (A) is a corporation duly organizedsuch Improvement Allowance without interest until such time that such default has been cured by Tenant and, validly existing and in good standing under the laws case of an Insolvency Proceeding, the Lease has been assumed by Tenant in accordance with the provisions of the State of Delaware, (B) has full power and authority and the legal right to incur the obligations provided for in this AgreementBankruptcy Code with Landlord's consent, and (C) has taken all necessary action to authorize the execution, delivery and performance of this Agreement.
(ii) This Agreement and Project Loan Documents to which it is a party have been duly authorized, executed and delivered deduct any amounts owed by Cogentrix GP and Cogentrix LP and constitute Tenant from the legal, valid and binding obligations of each of Cogentrix GP and Cogentrix LP enforceable against it in accordance with their terms, except as enforceability may be limited by general equitable principles and by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generallyImprovement Allowance.
(iii) Neither the execution, delivery or performance by Cogentrix GP and Cogentrix LP of this Agreement, nor compliance by it with the terms and provisions hereof, requires the consent or authorization of any other party (except such as have been duly obtained), or conflicts or will conflict with or result in a breach or violation of its charter documents or bylaws or any of the terms, conditions or provisions of any Requirement of Law applicable to it or its assets or business.
(iv) It is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
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