Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser; (1) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ ----------------------------------------------------------------------------- (2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors. (3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor; (4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes; (5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor. (6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Russ Berrie & Co Inc)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;
(1) satisfying itself in its sole and unfettered discretion, obligations of the environmental & soil conditions Lenders to make Loans on the Effective Date are subject, at the time of the property at its own expense. If said testing requires any disturbance making of soils, then such Loans to satisfaction of the Purchaser agrees to reinstate the property to its original condition as existing following conditions on or prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. Effective Date:
(a) The deposit Administrative Agent (or its counsel) shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form have received from each party hereto either (i) a part counterpart of this Agreement signed on behalf of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. such party or (Purchaserii) and ------------------------------------------------------------ METRUS PROPERTIES LTD. written evidence satisfactory to the Administrative Agent (Vendorwhich may include telecopy transmission of a signed signature page of this Agreement) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------that such party has signed a counterpart of this Agreement.
(2b) receiving The Administrative Agent shall have received from the approval Borrower a Closing Certificate in the Form of Exhibit E, dated the Effective Date and signed on behalf of the Board Borrower by a Financial Officer of Directors the Borrower.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Transaction Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its parent companycounsel.
(d) The Administrative Agent shall have received from Holland & Knight LLP, Russ counsel to the Loan Parties, and ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇ Company Inc.▇▇, Esq., Senior Vice President, Secretary and Chief Legal Officer of the Borrower, opinions addressed to this Agreement, which approval may be withheld the Administrative Agent and the Lenders and dated the Effective Date substantially in the sole discretion form of such Board of DirectorsExhibits F-1 and F-2, respectively.
(3e) satisfying itself that The Borrower shall have issued and sold the property is fully serviced, to First Priority Notes and the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction Second Priority Notes substantially on the property will be available upon compliance with normal procedures thereforterms and conditions described in the Offering Memorandum.
(6f) satisfying itselfAt or on the Effective Date, in its sole discretion, as to (1) the status Existing Notes tendered pursuant to the Offer to Purchase shall have been accepted by the Borrower in accordance with the terms of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the PropertyOffer to Purchase, (2) the status of supplemental indentures contemplated by the Offer to Purchase shall have been executed and delivered by all development charges parties thereto, and parkland dedication levies in respect of the Property only condition to their becoming operative shall be the payment for the Existing Notes tendered and (3) whether top soil must be removed from or added all Existing Notes not accepted for purchase tendered pursuant to the Property Offer to Purchase shall have been irrevocably called for redemption on or prior to January 17, 2006 and an amount sufficient to fund the redemption of the Existing Notes shall, concurrently with the purchase of the Securities by the Initial Purchasers, be deposited with the trustees for such Existing Notes in order to permit the Purchaser's proposed construction, and the determination defease or discharge each of the costs thereof. Each Existing Notes Indentures.
(g) The Borrower shall have furnished to the Administrative Agent the Security Agreement, duly executed by each Loan Party and each of the foregoing conditions is other parties thereto, together with:
(A) evidence satisfactory to the Administrative Agent that (upon filing in the appropriate filing offices referred to in clause (x) below) the Collateral Agent (for the sole benefit of the Purchaser Lenders and the other holders of Permitted First Priority Obligations) has a valid and perfected first priority security interest in the Collateral, as the case may be waived be, including (x) such documents duly executed by each Loan Party as the Purchaser in its sole discretion in whole or in part by Notice Administrative Agent may request with respect to the Vendor. In perfection of the event Collateral Agent’s security interests in the Collateral (including financing statements under the UCC and trademark and copyright security agreements), (y) copies of UCC search reports as of a recent date listing all effective financing statements that name any condition contained herein has not been fully satisfied on or before the forty fifth Loan Party as debtor, together with copies of such financing statements (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon except for those which shall be returned terminated on the Effective Date and Permitted Liens) and (z) evidence of termination and release of any existing Liens which are not Permitted Liens (including UCC-3 termination statements and releases);
(B) certificates representing all certificated Pledged Collateral (as defined in the Security Agreement) and stock powers or other instruments of transfer for such share certificates executed in blank; and
(C) Control Agreements with respect to each account listed on Schedule 6 to the Purchaser without deduction, and the Purchaser Security Agreement.
(h) The Borrower shall have no further obligations furnished to the Vendor under this Agreement except Administrative Agent such further information, certificates and documents as aforesaidthe Administrative Agent may reasonably request.
(i) The Borrower shall have provided an Officer’s Certificate to the Administrative Agent to the effect that:
(i) the representations and warranties set forth in Article III hereof and in the Security Documents are true and correct as of the Effective Date;
(ii) at the time of and immediately after giving effect to the Transactions to be consummated on the Effective Date, no Default shall have occurred and be continuing;
(iii) immediately after giving effect to the Transactions, (a) the fair value of the assets of each of the Borrower and each Subsidiary Guarantor, at a fair valuation, will exceed its debts and probable liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each of the Borrower and each Subsidiary Guarantor will be greater than the amount that will be required to pay its debts and other probable liabilities, subordinated, contingent or otherwise, as such debts and other probable liabilities become absolute and matured; (c) each of the Borrower and each Subsidiary Guarantor will be able to pay its debts and probable liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) none of the Borrower nor any Subsidiary Guarantor will have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchasersatisfaction 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 (1i) satisfying itself to each of the 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 (ii) to each of the Revolving Lenders providing additional Revolving Loan Commitments pursuant hereto such fees as may have been agreed in its sole writing by Borrower and unfettered discretioneach 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 applicable, of such Credit Party authorizing the environmental & soil conditions execution and delivery of this Amendment and the incurrence of the property at its own expense. If said testing requires any disturbance additional indebtedness, liabilities and obligations of soilssuch Credit Party hereunder, then which such authorizing resolutions shall have been certified to and in favor of Agent by Responsible Officer of such Credit Party as true, correct and complete copies thereof;
d. the Purchaser agrees 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 chief financial officer of Borrower and in form and substance as delivered on the Closing Date and (ii) a certificate, dated the First Amendment Effective Date and signed by a Responsible Officer of the Borrower, certifying that after giving effect to reinstate this Amendment and the property to its original condition as existing prior to funding of Revolving Loans on the undertaking First Amendment Effective Date (y) no Default or Event of Default exists and (z) all representations and warranties of each Credit Party set forth in this Amendment and each of the other Loan Documents are true and correct in all material respects (without duplication of any such soil tests, in 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 event of termination effectiveness of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of DirectorsAmendment.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;
(1) satisfying itself in its sole and unfettered discretion, consummation of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, transactions set forth in the event of termination of this agreement. If the agreement is terminated all environmental testing Sections 3 and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement shall be subject to the satisfaction of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------the following conditions precedent:
(2a) receiving the approval The Administrative Agent (or its counsel) shall have received from each of the Board Borrower and the Restatement Lenders either (i) a counterpart of Directors this Agreement signed on behalf of its parent company, Russ such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a written opinion dated the Restatement Effective Date of D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ ▇▇▇ Company Inc.LLP, to this AgreementNew York counsel for the Borrower, which approval may be withheld substantially in the sole discretion form of Exhibit B, and covering such Board of Directorsother matters relating to the Borrower and this Amendment as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(3c) satisfying itself that The Administrative Agent shall have received such documents and certificates as the property is fully servicedAdministrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, the authorization by the Borrower of the transactions contemplated hereby and any other legal matters relating to the Borrower or the transactions contemplated hereby, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming the representations and warranties set forth in paragraphs (a) and (b) of Section 5 of this Agreement.
(e) The Administrative Agent shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the lot linesextent invoiced, with reimbursement or payment of all municipal services and other installations out-of-pocket expenses required for public utilities to be reimbursed or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
Borrower under any Loan Document and (4ii) satisfying itself that all accrued and unpaid interest, commitment fees and participation fees under the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforExisting Credit Agreement.
(6f) satisfying itselfThe Administrative Agent shall have received all documentation and other information reasonably requested by it to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(g) The Administrative Agent shall be reasonably satisfied that all Term Loans and other amounts accrued and owing under the Term Loan Credit Agreement shall be fully repaid on the Restatement Effective Date.
(h) The Collateral Agent shall have received an agreement, in its sole discretionform and substance reasonably satisfactory to it, as executed and delivered by each Loan Party, confirming that the Collateral Agreement remains in full force and effect after giving effect to the transactions contemplated hereby.
(1i) The Borrower shall be satisfied that, after giving effect to the status of all capital leviestransactions contemplated hereby, sewer impost fees, local improvement rates, special assessments the total Class A Commitments shall not be less than $800,000,000; provided that the condition set forth in the paragraph may be waived by the Borrower. The Administrative Agent shall notify the Borrower and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect Lenders of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructionRestatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the determination foregoing, the consummation of the costs thereof. Each transactions set forth in Sections 3 and 4 of this Agreement shall not become effective unless each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the PurchaserRestatement Lenders) at or prior to 3:00 p.m., New York City time, on March 8, 2010 (and, in the event such conditions are not so satisfied or waived, this agreement Agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidterminate at such time).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Limited Brands Inc)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchasersatisfaction of the following conditions precedent:
(a) The Administrative Agent and the Lenders shall have received a counterpart of this Amendment (and any other documents necessary to evidence the transactions relating thereto) duly executed by the Borrower, the Guarantors, each of the Lenders and the Administrative Agent;
(1b) satisfying itself in its sole and unfettered discretionThe Administrative Agent shall have received a certificate, dated as of the environmental & soil conditions date hereof and signed by a Responsible Officer of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, Borrower in the event form of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Exhibit A attached hereto;
(2c) receiving No Default or Event of Default shall exist (other than the approval Specified Event of the Board Default);
(d) The Administrative Agent shall have received, for itself and on behalf of Directors of its parent company, Russ SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇ Company Inc.▇▇▇▇▇▇, to this AgreementInc. (“STRH”) and the Lenders, which approval may be withheld in the sole discretion of such Board of Directors.
fees and expenses contemplated by (3i) satisfying itself that certain engagement letter dated December 1, 2010 between STRH and the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the PurchaserBorrower, and that all municipal levies, imposts and permit such fees in respect thereof shall have been paid by to the VendorLenders and (ii) Section 4 hereof;
(4e) satisfying itself that the zoning The Administrative Agent shall have received a resolution of the property will permit Borrower authorizing the use execution and delivery of this Amendment and all transactions related thereto, in form and substance satisfactory to the property by the Purchaser for Administrative Agent and its intended purposescounsel;
(5f) satisfying itself that a building permit The Administrative Agent shall have received an incumbency certificate with respect to the Purchaser's proposed construction on officers of the property will be available upon compliance with normal procedures therefor.Borrower executing the Amendment, and certificates of existence for the Borrower and the Guarantors;
(6g) satisfying itselfThe Administrative Agent shall have received a favorable written opinion of ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Vice President, General Counsel and Secretary of the Borrower, addressed to the Administrative Agent and the Lenders, and covering such matters relating to the Amendment and the transactions contemplated thereby in form and substance satisfactory to the Administrative Agent and its sole discretion, as to counsel;
(1h) the status The Administrative Agent shall have received certified copies of all capital leviesconsents, sewer impost feesapprovals or authorizations, local improvement rates, special assessments required to be made or obtained in connection with the execution and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect delivery of the Property and Amendment or the transactions contemplated thereby; and
(3i) whether top soil must be removed from or added to The Administrative Agent shall have received such other documents as the Property in order to permit the Purchaser's proposed constructionAdministrative Agent, and the determination on behalf of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and Lenders, may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidreasonably request.
Appears in 1 contract
Conditions. The Purchaser's obligation under obligations of the Agent and the Lenders to enter into this Agreement is conditional for forty-five and to advance $12,000,000 on the Closing Date are subject to the satisfaction of the following conditions precedent that (45a) business days from acceptance all matters incident to the consummation of the transactions contemplated herein shall be reasonably satisfactory to the Agent and the Lenders and (b) the Agent shall have received, reviewed and approved the following documents and other items, appropriately executed when necessary and, where applicable, acknowledged by one or more Responsible Officers or other duly authorized representatives of each of the Borrowers party to a relevant document or of the General Partner of certain of the Borrowers party to a relevant document, as the case may be, acting on behalf of the relevant Borrower, or others as the case may be, all in form and substance reasonably satisfactory to the Agent and dated, where applicable, of even date herewith or a date prior thereto and acceptable to the Agent:
(a) multiple counterparts of this agreement upon Agreement as requested by the PurchaserAgent;
(b) the Notes to be in effect on the Closing Date;
(c) copies of the organizational documents of each of the Borrower, accompanied by a certificate dated the Closing Date issued by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner, to the effect that each such copy is correct and complete;
(d) a certificate of incumbency dated the Closing Date, including specimen signatures of all officers or other representatives of the relevant Borrower or its General Partner, who are authorized to execute Loan Documents on behalf of the relevant Borrower or its General Partner, such certificate being executed by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner;
(e) copies of resolutions adopted by the relevant governing body each of the Borrowers or of its General Partner approving the Loan Documents to which the relevant Borrower is a party and authorizing the transactions contemplated herein and therein, accompanied by a certificate dated the Closing Date issued by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner, to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified or rescinded in any respect and are in full force and effect as of the date of such certificate;
(f) subject to the provisions of clause (d) of Section 5.24, the following documents establishing Liens in favor or for the benefit of the Agent for the benefit of the Lenders, in and to the Collateral, including Mortgaged Properties constituting one hundred percent (100%) of the aggregate discounted present value, determined by the Agent, consistent with the customary lending practices of the Agent, of the Proved Reserves attributable to the Oil and Gas Properties of the Borrowers or any of them:
(i) security documents covering all Oil and Gas Properties (for the avoidance of doubt, including fee mineral interests) of the Borrowers or any of them sufficient for the Borrowers to be in compliance with the provisions of Section 5.5;
(ii) security documents covering assets of each of the Borrowers as to which a security interest against such assets may be created and perfected under the provisions of the UCC or the Uniform Commercial Code as adopted and in effect in states of the United States of America other than the State of New York, including the Equity Interests in each of the Borrowers;
(iii) financing statements constituent to the documents described in clauses (i) and (ii) above in this Section 3.2(f);
(iv) the Direction Letters (as executed only by one or more of the Borrowers);
(v) undated letters, in form and substance reasonably satisfactory to the Agent, from each of the Borrowers owning interests in Oil and Gas Properties (for the avoidance of doubt, including fee mineral interests) or interests in any pipelines or gathering systems transporting natural gas or petroleum products (A) owned by Persons other than the Borrower owning such interests or (B) owned by the Borrower owning such interests and to be sold to others to each purchaser of production and disburser of the proceeds of production from or attributable to the Mortgaged Properties or transportation fees, with the addresses left blank, authorizing and directing the addresses to make future payments attributable to production from the Mortgaged Properties owned by the relevant Borrower or transportation fees directly to the Lockbox of such Borrower;
(vi) a Blocked Account Agreement among MOMC, LegacyTexas Bank and the Agent with respect to the Lockbox Account; and
(vii) a Deposit Account Control Agreement with shifting control among the Borrowers, the Agent and LegacyTexas Bank with respect to each Operating Account.
(g) a copy of the Lockbox Services Agreement between MOMC and LegacyTexas Bank;
(h) multiple counterparts of the Subordination Agreement, as requested by LegacyTexas Bank;
(i) multiple counterparts of the Assignment of ORRI;
(j) copies of the East LA PSA and each amendment thereto through the Seventh Amendment to Purchase and Sale Agreement dated June 2, 2016;
(k) a copy of a fully executed counterpart of the East LA Operating Agreement;
(l) a copy of a fully executed counterpart of an additional amendment to the East LA PSA extending the deadline for the closing of the acquisition by MI which is the subject of the East LA PSA to a date no earlier than June 15, 2016;
(m) copies of fully executed counterparts of the Sansinena PSA and each amendment thereto through the Eighth Amendment to Purchase and Sale Agreement dated June 2, 2016;
(n) a copy of a fully executed counterpart of the Sansinena Operating Agreement;
(o) a copy of a fully executed counterpart of an additional amendment to the Sansinena PSA extending the deadline for the closing of the acquisition by MI which is the subject of the Sansinena PSA to a date no earlier than June 15, 2016;
(p) a copy of a fully executed counterpart of the Joint Acquisition Agreement; Operating Agreement dated effective April 1, 2016 between MI, as Operator, and Sunny Frog Oil, LLC;
(q) satisfying itself a copy of a fully executed counterpart of the conveyance by MI to Sunny Frog Oil, LLC pursuant to the Joint Acquisition Agreement;
(r) a copy of the Development Plan;
(s) copies of executed counterparts of all operating, lease, sublease, royalty, sales, exchange, processing, farmout, bidding, pooling, unitization, communitization and other agreements relating to the Oil and Gas Properties (for the avoidance of doubt, including fee mineral interests) of the Borrowers or any one or more of them, as reasonably requested by the Agent or any Lender prior to the Closing Date;
(t) a Reserve Report prepared as of January 1, 2016 and in compliance with the requirements for engineering reports set forth in the definition of Reserve Report in Section 1.2.
(u) drafts of the not yet issued annual audited Financial Statements prepared as of December 31, 2015 and unaudited quarterly Financial Statements prepared as of March 31, 2016;
(v) payment of structuring fee in the amount of $240,000;
(w) copies of all employment agreements between any of the Borrowers and members of the senior management of the relevant Borrower;
(x) certificates dated as of a recent date from the appropriate Governmental Authority evidencing the existence or qualification and, if applicable, good standing of each of the Borrowers in its sole jurisdiction of organization and unfettered in each jurisdiction in which it owns material assets or conducts material operations;
(y) results of searches of the uniform commercial code records of the Secretary of State of the State of California and the Secretary of State of the State of Texas, as applicable, in the names of each of the Borrowers, such search reports to be from a source or sources acceptable to the Lender and reflecting no Liens, other than Permitted Liens, against any of the Collateral as to which perfection of a Lien is accomplished by the filing of a financing statement.
(z) subject to the provisions of clause (d) of Section 5.24, confirmation, acceptable to the Agent, of the title of the Borrowers or any of them owning any Mortgaged Properties, free and clear of Liens other than Permitted Liens, to Mortgaged Properties constituting, in the aggregate, one hundred percent (100%) of the PV-10 value, as determined by the Agent in its discretion, of the environmental & soil conditions PDP Reserves and PUD Reserves attributable to the Mortgaged Properties;
(aa) a certificate or certificates evidencing the insurance coverage required by the provisions of Section 5.19;
(bb) a payoff letter from LegacyTexas Bank, in form and substance reasonably acceptable to the Agent, setting forth, among other matters, the amount due on the Closing Date to pay in full all amounts owing by any of the property at its own expense. If said testing requires any disturbance of soilsBorrowers to LegacyTexas Bank;
(cc) release documents from LegacyTexas Bank, then the Purchaser agrees to reinstate the property to its original condition as existing prior in form and substance reasonably acceptable to the undertaking Agent, necessary to release all Liens held by LegacyTexas Bank against Property of any such soil testsof the Borrowers and securing the Indebtedness which is the subject of the payoff letter referred to in clause (bb) immediately above;
(dd) copies of all Commodity Hedge Agreements, in the event of termination of this agreement. If the agreement is terminated all environmental testing form and reports will be provided substance reasonably acceptable to the Vendor at an equal shared cost. The deposit shall secure Agent and with Approved Hedge Counterparties, establishing the obligation Minimum Required Commodity Hedge Agreements;
(ee) payment from the Borrowers or any one or more of them of estimated fees charged by filing officers and other public officials incurred or to repair be incurred in connection with the filing and recordation of any damages caused by such tests. The Purchaser indemnifies the Vendor for Security Documents and any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with release documents provided by LegacyTexas Bank and form a part for which invoices have been presented as of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------the Closing Date;
(2ff) receiving the approval opinion of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Company Inc.LLP, counsel to the Borrowers for purposes of the transactions which are the subject of this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, form and substance reasonably satisfactory to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorAgent;
(4gg) satisfying itself that the zoning opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, A Professional Law Corporation, special counsel to the Borrowers in the State of California for purposes of the property will permit transactions which are the use subject of this Agreement, in form and substance reasonably satisfactory to the property by the Purchaser for its intended purposesAgent;
(5hh) satisfying itself that a building permit with respect certificate of a Responsible Officer of each of the Borrowers to the Purchaser's proposed construction on effect that, after giving effect to the property will be available upon compliance with normal procedures therefor.
(6) satisfying itselftransactions which are the subject of this Agreement, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments representations and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect warranties made by any of the Property and (3) whether top soil must be removed from or added to the Property Borrowers in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by any other Loan Agreement in place on the PurchaserClosing Date are true and correct, this agreement shall come to an end and in all material respects, as of the deposit and all interest earned thereon shall be returned Closing Date;
(ii) confirmation reasonably acceptable to the Purchaser without deduction, and the Purchaser Agent that no event or circumstance shall have no further obligations occurred which could reasonably be expected to have a Material Adverse Effect;
(jj) payment of estimated fees and expenses of counsel to the Vendor under this Agreement except Agent incurred through the Closing Date and for which an invoice has been presented to the Borrowers; and
(kk) such other agreements, documents, instruments, opinions, certificates, waivers, consents and evidences as aforesaidthe Agent or any Lender may reasonably request.
Appears in 1 contract
Conditions. The Purchaser's obligation under amendments set forth in Section 2 shall become effective on the date (“Amendment Effective Date”) when each of the following conditions has been satisfied (or waived as set forth in Section 9.08 of the Existing Credit Agreement):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement is conditional for forty-five signed on behalf of such party or (45ii) business days from acceptance written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this agreement upon the Purchaser;Agreement) that such party has signed a counterpart of this Agreement.
(1b) satisfying itself in its sole and unfettered discretionEach Term Lender executing this Agreement as an Extending Term Lender shall have received, if requested by it, one or more replacement Promissory Notes payable to the order of such Extending Term Lender duly executed by the applicable Borrower pursuant to Section 2.09(e) of the environmental & soil conditions of Amended Credit Agreement evidencing such Lender’s Term Loans, as extended; provided that such Lender shall have returned to the property at its own expense. If said testing requires Borrowers any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing Promissory Note held by it prior to the undertaking Amendment Effective Date.
(c) The Administrative Agent shall have received, on behalf of any such soil testsitself, the Lenders and each Issuing Bank on the Amendment Effective Date, a written opinion of (i) O’Melveny & ▇▇▇▇▇ LLP, special counsel for Holdings, Intermediate Holdings and the Borrowers, in the event of termination of this agreement. If the agreement is terminated all environmental testing form and reports will be provided substance reasonably satisfactory to the Vendor Administrative Agent, and (ii) foreign counsel reasonably satisfactory to the Administrative Agent as specified on Schedule 1, in each case (a) dated the Amendment Effective Date, (b) addressed to each Issuing Bank on the Amendment Effective Date, the Administrative Agent and the Lenders and (c) in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings, Intermediate Holdings, each Borrower and each Subsidiary Loan Party hereby instructs its counsel to deliver such opinions.
(d) The Administrative Agent shall have received from the Borrowers a consent fee payable for the account of each Lender (other than a Defaulting Lender) that has returned an executed signature page to this Agreement to the Administrative Agent at an or prior to 5:00 p.m., New York City time on Monday, January 31, 2011 (the “Consent Deadline” and each such Lender, a “Consenting Lender”) equal shared cost. The deposit shall secure to 0.10% of the obligation to repair any damages caused sum of (x) the aggregate principal amount of Term Loans, if any, held by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out Consenting Lender as of the testing and; 4 SCHEDULE "A" Page Two To be read Consent Deadline with respect to which a consent was delivered, (y) the aggregate amount of the Revolving Credit Commitment, if any, of such Consenting Lender as of the Consent Deadline with respect to which a consent was delivered and form (z) the aggregate amount of the Credit-Linked Deposits, if any, of such Consenting Lender as of the Consent Deadline with respect to which a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------consent was delivered.
(2e) receiving The Administrative Agent shall have received all fees payable thereto on or prior to the approval Amendment Effective Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of the Board all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of Directors of its parent company, Russ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Company Inc., & ▇▇▇▇▇▇▇▇ LLP and all foreign counsel of the Administrative Agent) required to this Agreement, which approval may be withheld in reimbursed or paid by the sole discretion of such Board of DirectorsLoan Parties hereunder or under any Loan Document.
(3f) satisfying itself The Reaffirmation Agreement shall have been executed and delivered by each party thereto. Each Lender holding Term Loans that elects to become a Lender holding Extended Maturity Term Loans (the property is fully serviced“Extending Term Lender”) subject to all of the rights, obligations and conditions thereto under the Amended Credit Agreement shall make such election by executing the appropriate signature page in accordance with Section 4(b) hereof and delivering to the lot lines, with all municipal services and other installations required for public utilities Administrative Agent such signature page on or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect prior to the Purchaser's proposed construction on Consent Deadline stating the property will be available upon compliance with normal procedures thereforamount of each applicable Tranche of Term Loan outstanding that such Lender would like to extend and convert into an Extended Maturity Term Loan.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Sources: Amendment Agreement (Momentive Performance Materials Inc.)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;
(1) satisfying itself in its sole and unfettered discretion, This Amendment shall not become effective until each of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing following conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the PurchaserRequired Lenders):
3.01 The Administrative Agent shall have received counterparts of this Amendment duly executed by each Credit Party signatory hereto and each other relevant party to this Amendment;
3.02 The representations and warranties contained in Section 2 hereof shall be true and correct in all material respects on and as of the date hereof, this agreement shall come as though made on such date (except to the extent that such representations and warranties relate solely to an end earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date);
(i) The Third Lien Transaction shall have been consummated (or shall be consummated substantially simultaneously with the execution hereof) on the terms and conditions set forth in the Third Lien Note Documents and (ii) the Administrative Agent shall have received evidence of the Borrower’s receipt of net proceeds of at least $10,000,000 from the Third Lien Transaction in form and substance satisfactory to Administrative Agent;
3.04 The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, the Amendment No. 5 Warrants executed by Borrower and each Warrant Holder;
3.05 The Administrative Agent shall have received a certificate for each Credit Party party to the Amendment, dated as of the date hereof, duly executed and delivered by an Authorized Officer of such Credit Party party to the Amendment as to:
(i) resolutions of each such Person’s board of managers/directors (or other managing body, in the case of a Person that is not a corporation) then in full force and effect expressly and specifically authorizing, to the extent relevant, all aspects of this Amendment and Amendment No. 5 Warrants applicable to such Person and the deposit execution, delivery and all interest earned thereon shall performance of this Amendment and Amendment No. 5 Warrants, in each case, to be returned executed by such Person;
(ii) the incumbency and signatures of its Authorized Officers and any other of its officers, managing member or general partner, as applicable, authorized to act with respect to this Amendment and Amendment No. 5 Warrants to be executed by such Person;
(iii) each such Person’s Organization Documents, as amended, modified or supplemented as of the date hereof, with the certificate or articles of incorporation or formation certified by the appropriate officer or official body of the jurisdiction of organization of such Person; and
(iv) certificates of good standing with respect to each Credit Party, each dated within a recent date prior to the Purchaser without deductiondate hereof, and such certificates to be issued by the Purchaser appropriate officer or official body of the jurisdiction of organization of such Credit Party, which certificate shall indicate that such Credit Party is in good standing in such jurisdiction.
3.06 The Administrative Agent shall have no further obligations received, for its own account, the fees, costs and expenses due and payable to it pursuant to Section 5.01 hereof and Section 12.05 of the Amended Credit Agreement (including the reasonable fees, disbursements and other charges of counsel) for which invoices have been presented prior to the Vendor under this date hereof; and
3.07 The Administrative Agent shall have received counterparts of the Amendment No. 3 to First Lien Credit Agreement except duly executed by the First Lien Agent, each Credit Party signatory thereto and each other relevant party thereto.
3.08 The First Lien Agent shall have received a Transfer Letter (as aforesaiddefined in the applicable Security Documents) executed in blank covering each pending or issued Drug Application (as defined in the Security Agreement) existing after the Closing Date if a Transfer Letter with respect thereto shall not have heretofore been delivered.
3.09 The Administrative Agent shall have received an executed version of the Third Lien Intercreditor Agreement duly executed by the Third Lien Agent, the First Lien Agent, the Administrative Agent and each other relevant party thereto.
3.10 The Administrative Agent shall have received counterpart of the Amended and Restated Canadian Security Agreement between the Administrative Agent and Teligent Canada, Inc.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance consummation of this agreement upon the Purchaser;transactions set forth in Sections 3 and 4 hereof shall be subject to the satisfaction of the following conditions precedent:
(1a) satisfying itself The Administrative Agent shall have received a solvency certificate substantially in its sole the form attached to the Restated Credit Agreement as Exhibit F, dated the Restatement Effective Date and unfettered discretionsigned by the chief financial officer, chief accounting officer or other officer with equivalent duties (and acceptable to the Administrative Agent), in each case of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing US Borrower.
(b) At least five Business Days prior to the undertaking Restatement Effective Date, the Administrative Agent and the Lenders shall have received all documentation and other information required by bank regulatory authorities or reasonably requested by the Administrative Agent or any Lender under or in respect of any such soil testsapplicable “know-your-customer” and anti-money laundering rules and regulations, in including the event of termination of this agreement. If PATRIOT Act and the agreement is terminated all environmental testing and reports will be provided Beneficial Ownership Regulation, that was requested at least 10 Business Days prior to the Vendor Restatement Effective Date.
(c) The Lenders and the Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced at an equal shared cost. The deposit shall secure least two Business Days prior to the obligation to repair any damages caused by such tests. The Purchaser indemnifies Restatement Effective Date, the Vendor for any liability that fees and expenses referenced in Section 13 hereof (which amounts may arise out be offset against the proceeds of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Restatement Term Loans).
(2d) receiving The representations and warranties set forth in Section 5 hereof shall be true and correct.
(e) The Administrative Agent shall have received a customary written opinion (addressed to the approval Administrative Agent, the Issuing Banks and the Lenders) of the Board each of Directors of its parent company, Russ (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Company Inc.LLP, special counsel to the Loan Parties, and (ii) local counsel in each jurisdiction in which a Loan Party is organized, to this Agreementthe extent such Loan Party is not covered by the opinion referenced in the immediately preceding clause (i), as may be required by the Administrative Agent, which approval opinions shall cover such matters relating to the Loan Documents and the Transactions as the Administrative Agent may be withheld in the sole discretion of such Board of Directorsreasonably require.
(3f) satisfying itself that the property is fully serviced, The Administrative Agent shall have received customary evidence relating to the lot linesorganization, existence and good standing of each of the Loan Parties, the authorization of the transactions contemplated by this Agreement and customary officer’s and secretary’s certificates and good standing certificates (to the extent applicable) in the jurisdictions of organization of the Loan Parties, substantially in the form of the documentation delivered to the Administrative Agent on the Closing Date pursuant to Section 4.01(i) of the Existing Credit Agreement.
(g) The US Borrower shall have delivered to the Administrative Agent a completed Perfection Certificate, dated as of the Restatement Effective Date, executed by a duly authorized officer of the US Borrower, together with all municipal services attachments contemplated thereby. The Administrative Agent shall have received the results of a recent lien, tax lien, judgment and litigation search in each of the jurisdictions or offices (including in the United States Patent and Trademark Office and the United States Copyright Office) in which UCC financing statements, PPSA filings or other installations required filings or recordations should be made to evidence or perfect security interests in all assets of the Domestic Loan Parties (or would have been made at any time during the five years immediately preceding the Restatement Effective Date to evidence or perfect Liens on any assets of the Domestic Loan Parties), and such search shall reveal no Liens or judgments on any of the assets of the Domestic Loan Parties, except for public utilities Permitted Liens or Liens and judgments to be terminated on the Restatement Effective Date pursuant to any subdivision or other agreementdocumentation satisfactory to the Administrative Agent.
(h) The requirements of Section 5.12 of the Credit Agreement with respect to each of ▇▇▇▇▇▇ Bay Resources, that same Inc., a Delaware corporation, and Dove Creek Grazing, LLC, a Utah limited liability company, shall have been fully paid for and none will be charged as local improvements, that same are sufficient for satisfied substantially concurrently with the proposed use effectiveness of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;Restated Credit Agreement.
(4i) satisfying itself that The US Borrower shall have delivered to the zoning Administrative Agent the notice required by Section 2.02 of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit Restated Credit Agreement with respect to the Purchaser's proposed construction Restatement Term Loans to be made on the property will be available upon compliance with normal procedures thereforRestatement Effective Date.
(6j) satisfying itselfThe US Borrower shall have paid to the Administrative Agent, in its sole discretionfor the account of the Lenders and the Issuing Banks, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments unpaid interest and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies fees in respect of the Property and (3) whether top soil must be removed from or added to Revolving Commitments, the Property in order to permit the Purchaser's proposed construction, Revolving Loans and the determination Letters of Credit that have accrued through (but not including) the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidRestatement Effective Date.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Compass Minerals International Inc)
Conditions. The Purchaser's obligation under this Buyer and Sellers hereby agree that the following Conditions Precedent must be satisfied or waived before the Closing:
5.1.1 The Buyer shall have completed due diligence on the Target Company and the Buyer is satisfied with the results.
5.1.2 No Government Department shall have issued or enforced any Laws, judgments, orders or bans that will limit or prohibit the completion of the Agreement or Transaction prior to Closing.
5.1.3 Prior to Closing, there shall be no lawsuits or procedures initiated by any third party (including any Government Department) that is conditional for forty-five pending or potentially seeking to prohibit or limit the completion of the Transaction.
5.1.4 The Sellers shall have completed the following:
(45a) business days from acceptance the key employees of this agreement upon the PurchaserOriginal Company listed in (ii) section of Appendix II (List of Employees) have all been transferred to the Target Company as new key employees and each has signed a labour contract respectively with the Target Company to the satisfaction of the Buyer and has not submitted resignation or notice of intent of resignation.
(b) the vehicles listed in Appendix III (List of Motor Vehicles) shall have been transferred to the Target Company;
(1c) satisfying itself in its sole and unfettered discretion, respect of the environmental & soil conditions lease contracts listed in Appendix IV (List of Lease Contracts), the Sellers and/or the Original Company shall have agreed in writing with the relevant lessor and Target Company that the lessee will be changed to the Target Company;
(d) in respect of the property at its own expense. If said testing requires any disturbance business contracts listed in Appendix V (List of soilsBusiness Contracts), then the Purchaser agrees to reinstate Sellers and/or the property to its original condition as existing prior Original Company shall have agreed in writing with the relevant parties to the undertaking contracts and the Target Company that the rights and obligations of any such soil teststhe Sellers and/or the Original Company under the contracts will be transferred to the Target Company;
(e) all assets of the Original Company (including all cash, equipment and other assets which are not accounted for in the event company’s accounts but actually used for its operations, the particulars of termination which shall be subject to Appendix VI (List of this agreement. If the agreement is terminated all environmental testing and reports will be provided Assets)) shall have been transferred to the Vendor at an equal shared cost. The deposit Target Company.
(f) the Target Company shall secure have completed the obligation corresponding procedure of change in industrial and commerce registration or filing (including but not limited to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out Shareholders, directors and the revised articles of incorporation of the testing and; 4 SCHEDULE "A" Page Two To Target Company) within thirty (30) days after the Agreement comes into effect, and the amended articles of incorporation and register of members have handed over to the Buyer.
5.1.5 There shall be read with serious default of the Undertakings of the Sellers and form a part of this Agreement of Purchase the Sellers have not seriously breached any other obligations under the Agreement.
5.1.6 There have not occurred any Major Adverse Effects.
5.1.7 The Sellers have fully disclosed their external liabilities and the Sellers have provided relevant solutions approved by the Buyer.
5.1.8 The resolution on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of Transaction has been passed by the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of DirectorsBuyer.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45a) business days from acceptance This Amendment shall be effective upon satisfaction of this agreement upon the Purchaser;following conditions precedent:
(1i) satisfying itself in its sole and unfettered discretion, This Amendment shall have been executed by each party hereto; and
(ii) The Agent shall have received a certificate from the chief financial officer of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soilsCompany certifying that (i) immediately after giving effect to this Amendment, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil testsall representations and warranties made hereunder, in the event Loan Agreement and in the other Loan Documents shall be true and correct as if made on the date hereof, (ii) the Borrowers 3 Table of termination Contents have performed and complied with all covenants, agreements and conditions contained herein which are required to be performed or complied with by the Borrowers on or before the date hereof and (iii) no Default or Event of Default shall have occurred and be continuing after giving effect to this Amendment.
(b) The following shall be conditions precedent to the execution of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. Amendment:
(i) The deposit Agent shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out have received (i) copies of the testing and; 4 SCHEDULE "A" Page Two To be read with articles of incorporation or certificates of formation or other charter documents of each Borrower, (ii) copies of the bylaws or other similar agreement and form a part all amendments thereto of this Agreement each Borrower, (iii) copies of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval resolutions of the Board of Directors or similar managing body of its parent companyeach Borrower approving and adopting this Amendment, Russ ▇▇▇▇▇▇ ▇▇▇ the transactions contemplated herein and authorizing execution and delivery thereof, in each case, of each Borrower and certified by a secretary or assistant secretary of the Company Inc.to be true and correct and in force and effect as of the date hereof, to this Agreement, which approval may be withheld in (iv) a certificate of the sole discretion Secretary or Assistant Secretary (or equivalent thereof) of such Board of Directors.
(3) satisfying itself that the property is fully serviced, each Borrower certifying as to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use incumbency of the property officers of each Borrower, and (v) an original, duly certified as of a current date by the Purchaserapplicable Secretary of State, and that all municipal levies, imposts and permit fees in respect thereof have been paid of a good standing certificate issued by the VendorSecretary of the state of incorporation or organization of each Borrower;
(4ii) satisfying itself that The Borrowers shall have paid the zoning fees described in the Fee Letter and all other fees and expenses of the property will permit Agent and the use Attorney Costs incurred in connection with this Amendment and any of the property by Loan Documents and the Purchaser for its intended purposestransactions contemplated thereby to the extent invoiced;
(5iii) satisfying itself that a building permit with respect The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Purchaser's proposed construction on Agent, of all insurance coverage as required by the property will be available upon compliance with normal procedures therefor.Loan Agreement;
(6iv) satisfying itselfThe Agent and the Lenders shall have had an opportunity, in its sole discretionif they so choose, as to (1) examine the status books of all capital levies, sewer impost fees, local improvement rates, special assessments account and other capital or similar charges against the Property, (2) the status of all development charges records and parkland dedication levies in respect files of the Property Borrowers and (3) whether top soil must be removed from or added to make copies thereof, and to conduct a field examination and audit of the Property in order to permit the Purchaser's proposed constructionCollateral which shall include, without limitation, updated desktop fixed asset appraisals, verification of Inventory, Accounts, and the determination Borrowing Base, and in each case the results of such examination and audit shall have been satisfactory to the Agent and the Lenders in all respects;
(v) The Agent shall have received a fair market value appraisal of the costs thereof. Each Columbia Property (provided that it shall not be a condition precedent to the execution of this Amendment that the Agent receive a fair market value appraisal of the foregoing conditions is for the sole benefit of the Purchaser other Land and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied Buildings listed on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deductionSchedule A-2), and the Purchaser results of such appraisal shall have no further obligations been satisfactory to the Vendor under Agent and the Lenders in all respects;
(vi) All proceedings taken in connection with the execution of this Agreement except Amendment and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent and the Lenders; and
(vii) The Agent shall have received a copy of the signed order (the ‘‘Amendment Order’’) of the Bankruptcy Court in substantially the form attached hereto as aforesaidAnnex III authorizing and approving the transactions contemplated hereby. The Amendment Order (i) shall be in form and substance satisfactory to the Agent, (ii) shall be certified by the Clerk of the Bankruptcy Court as having been duly entered, (iii) shall approve the payment by the Borrowers of all of the fees set forth in the Fee Letter, and (iv) shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed.
Appears in 1 contract
Sources: Post Petition Loan and Security Agreement (W R Grace & Co)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of Article 2 of this agreement upon Amendment is subject to the Purchaser;satisfaction of the following conditions precedent on or before July 12, 2001 (the “Closing Date”):
(1a) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior The Administrative Agent shall have received a favorable written opinion from counsel to the undertaking of any such soil testsBorrower and the Material Restricted Subsidiaries, in dated the event of termination of this agreement. If the agreement is terminated all environmental testing Closing Date and reports will be provided addressed to the Vendor at an equal shared cost. The deposit shall secure the obligation Lenders and satisfactory to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ Jenkens & ▇▇▇▇▇▇ ▇▇▇ Company Inc.▇▇, a Professional Corporation, counsel for the Administrative Agent, to this Agreement, which approval may be withheld the effect set forth in Exhibit C hereto (and the sole discretion Borrower hereby instructs its counsel to deliver such opinion to the Administrative Agent for the benefit of such Board of Directorsthe Lenders).
(3b) satisfying itself The Administrative Agent shall have received: (i) a certificate as to the good standing of the Borrower as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of the Borrower dated the Closing Date and certifying (A) that the property is fully serviced, Borrower's bylaws previously certified to the lot linesAdministrative Agent under the Assistant Secretary's Certificate dated July 29, with all municipal services 1999 remain in full force and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for effect on and none will be charged as local improvements, that same are sufficient for the proposed use of the property Closing Date without further modifications or amendments in any respect; (B) attached thereto is a true and complete copy of resolutions, duly adopted by the PurchaserBoard of Directors authorizing the execution, delivery and performance of this Amendment, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the Articles of Incorporation dated January 12, 2001 previously delivered to the Administrative Agent in January 2001 remain in full force and effect on and as of the Closing Date without further modifications or amendments in any respect; and (D) as to the incumbency and specimen signature of each officer executing this Agreement or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent, shall reasonably request.
(c) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Senior Financial Officer of the Borrower confirming compliance with the conditions precedent set forth in paragraphs (b) and (c) of Section 4.01 of the Credit Agreement.
(d) The Agents shall have received all municipal leviesFees and other amounts due and payable on or prior to the Closing Date.
(e) The Administrative Agent shall have received (i) a copy of the certificate of incorporation, imposts and permit fees in respect thereof have been paid including all amendments thereto, of each Material Restricted Subsidiary, certified as of a recent date by the VendorSecretary of State of its state of incorporation, and a certificate as to the good standing of such Material Restricted Subsidiary as of a recent date from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of each Material Restricted Subsidiary dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws of such Material Restricted Subsidiary as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions, duly adopted by the Board of Directors authorizing the execution, delivery and performance of the Subsidiary Guaranty, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate of incorporation referred to in clause (i) above has not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to such clause (i) and (D) as to the incumbency and specimen signature of each officer executing the Subsidiary Guaranty or any other document delivered in connection herewith on behalf of such Material Restricted Subsidiary; (iii) a certificate of another officer of each Material Restricted Subsidiary as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent, shall reasonably request.
(f) The Administrative Agent shall have received evidence that all Persons who have the benefit of the provisions similar or substantially similar to the terms of Section 5.06 of the Credit Agreement (including without limitation, the holders of the notes under the Senior Note Purchase Agreements) shall have consented to the terms of this Amendment and any consent or amendment executed in connection therewith must be in form and substance acceptable to the Administrative Agent.
(g) As of the Closing Date, all representations and warranties contained in the Credit Agreement (as amended hereby) shall be true, correct, and complete in all material respects except for representations specifically relating to a prior date;
(4h) satisfying itself that the zoning No Default or Event of the property will permit the use of the property by the Purchaser for its intended purposesDefault shall have occurred and be continuing;
(5i) satisfying itself that a building permit All corporate proceedings taken in connection with respect the transactions contemplated by this Amendment and all other agreements, documents, and instruments executed and/or delivered pursuant hereto, and all legal matters incident thereto, shall be satisfactory to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.Administrative Agent and its legal counsel;
(6j) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital Payment or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added reimbursement to the Property in order to permit the Purchaser's proposed constructionLenders, and the determination Agents of all outstanding expenses, fees and other costs incurred by, or due to, the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deductionLenders, and the Purchaser Agents for which such entity has presented an invoice to the Borrower prior to the Closing Date; and
(k) The Administrative Agent shall have no further obligations received such additional agreements, certificates, documents, instruments and information as the Administrative Agent or its legal counsel may request to effect the Vendor under this Agreement except as aforesaidtransactions contemplated hereby.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Lennox International Inc)
Conditions. 3.01. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment shall depend on the Purchaser;fulfillment of all of the following conditions precedent:
(1a) satisfying itself in its sole and unfettered discretion, The Lender shall have received a Certificate of Financial Condition of the environmental & soil conditions Borrower executed by one of its officers dated as the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination date of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of DirectorsAmendment.
(3b) satisfying itself that The Lender shall have received a fully-executed Amended and Restated Promissory Note in the property is fully serviced, amount of $50,000,000 substantially in the form of Exhibit G to this Amendment. The Lender promptly shall return the original executed Promissory Note to the lot lines, Borrower with all municipal services a signed notation marked on it as being amended and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property replaced by the Purchaser, Amended and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforRestated Promissory Note.
(6c) satisfying itself, The Lender shall have received a fully-executed Supplemental Security Agreement from the Operating Company in its sole discretion, as the form of Exhibit H to this Amendment.
(1d) The Lender shall have received a fully-executed Pledge Agreement from the status Borrower in the form of Exhibit I to this Amendment.
(e) The Lender shall have received a Consent and Agreement to Amendment by all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property Borrower's Subsidiaries that have guaranteed the Loan in the form of Exhibit J to this Amendment.
(f) The Lender shall have received an officer's certificate evidencing all actions taken by the Borrower and (3) whether top soil must be removed from or added the Operating Company to authorize the Property in order to permit execution, delivery and performance of the Purchaser's proposed constructionBorrower of this Amendment, the Amended and Restated Promissory Note, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deductionSupplemental Security Agreement, and the Purchaser Pledge Agreement.
(g) The Lender shall have no further obligations received a written opinion of counsel relating to the Vendor under Borrower and the Operating Company substantially in the form of Exhibit K to this Agreement except as aforesaidAmendment.
Appears in 1 contract
Sources: Loan and Security Agreement (Startec Global Communications Corp)
Conditions. The Purchaser's obligation under this Agreement is conditional (a) Sections 2, 3(j), 4, and 12 through 20 (and any defined terms included in such Sections, as necessary), and for fortythe avoidance of doubt the Tack-five (45) business days from acceptance on Loan Commitments, shall become effective on the date on which the Administrative Agent shall have received counterparts of this agreement upon Amendment that, when taken together, bear the Purchaser;signatures of Holdings, the Borrower, the Required Lenders and each Tack-on Lender.
(1b) satisfying itself in its sole The remainder of this Amendment, and unfettered discretion, the obligations of the environmental & soil conditions Tack-on Lenders to fund the Tack-on Loans hereunder, shall become effective as of the property at its own expense. If said testing requires any disturbance date first above written when each of soils, then the Purchaser agrees to reinstate following conditions has been met:
(i) the property to its original condition as existing Administrative Agent shall have received all fees and other amounts due and payable on or prior to the undertaking Amendment No. 4 Effective Date (including (A) the Amendment Fee specified in Section 15 below, (B) the Ticking Fee specified in Section 16 below and (C) all reasonable invoiced fees, charges and disbursements of any such soil testsCravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Administrative Agent).
(ii) The Armour Acquisition shall have been consummated, or substantially simultaneously with the funding of the Tack-on Loans shall be consummated, in accordance in all material respects with applicable law and the event Armour Purchase Agreement (and no material provision of termination of this agreement. If the agreement is terminated all environmental testing Armour Purchase Agreement shall have been waived, amended, supplemented or otherwise modified in a manner material and reports will be provided adverse to the Vendor at an equal shared costLenders without the consent of the Administrative Agent). The deposit Administrative Agent shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out have received certified copies of the testing and; 4 SCHEDULE "A" Page Two To be read with Armour Purchase Agreement and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) all material certificates and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------other documents delivered thereunder.
(2iii) receiving The Administrative Agent shall have received favorable written opinions (addressed to the approval Administrative Agent and the Lenders and dated as of the Board Amendment No. 4 Effective Date) of Directors each of its parent company, Russ (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ Company Inc.LLP, to this Agreementcounsel for Holdings and the Borrower, which approval may be withheld substantially in the sole discretion form of such Board of DirectorsExhibit B-1 hereto and (B) applicable local counsel, in form and substance reasonably satisfactory to the Administrative Agent.
(3iv) satisfying itself that The Administrative Agent shall have received such documents and certificates as the property is fully serviced, Administrative Agent or its counsel may reasonably request relating to the lot linesorganization, with all municipal services existence and other installations required for public utilities or pursuant to any subdivision or other agreementgood standing of each Loan Party, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use authorization of the property Amendment and any other legal matters relating to the parties hereto or the Loan Documents or the Armour Acquisition, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(v) The Administrative Agent shall have received a certificate, dated as of the Amendment No. 4 Effective Date and signed by the PurchaserPresident or a Vice President of the Borrower or a Financial Officer, confirming compliance with the conditions set forth in paragraphs (a) and that all municipal levies, imposts and permit fees in respect thereof have been paid (b) of Section 4.03 of the Credit Agreement.
(vi) All Uniform Commercial Code financing statements reasonably requested by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit Collateral Agent to be filed or recorded with respect to the Purchaser's proposed construction on assets acquired in the property will be available upon compliance Armour Acquisition shall have been filed or recorded or delivered to the Collateral Agent for filing or recording, and the Collateral Agent shall have received (i) the results of bring-down searches of the Uniform Commercial Code filings made with normal procedures thereforrespect to each of the Loan Parties in its jurisdiction of organization and (ii) a completed update to the Perfection Certificate dated the Amendment No. 4 Effective Date and signed by an officer of the Borrower, together with all attachments contemplated thereby.
(6) satisfying itself, in its sole discretion, as to (1vii) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against Collateral Agent shall have received (A) amendments to each Mortgage securing the Property, (2) the status of all development charges and parkland dedication levies in respect Obligations of the Borrower providing that the Tack-on Loans shall be secured by a Lien on the Mortgaged Property that is the subject of such Mortgage, signed on behalf of the record owner of such Mortgaged Property and (3B) whether top soil must be removed from with respect to any real property acquired in the Armour Acquisition counterparts of a Mortgage with respect to such real property duly executed and delivered by the record owner of such real property.
(viii) The Reaffirmation Agreement shall have been executed and delivered by each party thereto.
(ix) The Administrative Agent shall have received at or added prior to the Property in order to permit the Purchaser's proposed construction, and the determination time required by Section 2.03 of the costs thereof. Each Credit Agreement, a Borrowing Request with respect to the Borrowing of the foregoing conditions is for Tack-on Loans (i) that complies with the sole benefit requirements of Section 2.03 of the Purchaser Credit Agreement and may be waived Section 9(c) of Amendment No. 2 and Waiver to the Credit Agreement and (ii) pursuant to which the Borrower agrees that the provisions of Section 2.16 of the Credit Agreement shall apply to any failure by the Purchaser in its sole discretion in whole or in part by Notice Borrower to borrow the VendorTack-on Loans on the Amendment No. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.4
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five On or before the Amendment No. 1 Effective Date all of the following conditions shall be satisfied unless waived in writing by Agent:
(45A) business days from acceptance the Lenders shall have completed a due diligence investigation of this agreement upon New Borrower in scope, and with results reasonably satisfactory to the PurchaserLenders, and nothing shall have come to the attention of the Lenders during the course of such due diligence investigation to lead them to believe (i) that any information provided by Borrower was or has become misleading, incorrect or incomplete in any material respect, (ii) that, as of the Amendment No. 1 Effective Date, New Borrower would not have good and marketable title to all of the material assets reflected in the information provided by them to any Lender and (iii) that the terms of financing as amended hereby will have a Material Adverse Effect; without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Transaction Parties as they shall have reasonably requested;
(1B) satisfying itself all due diligence materials reasonably requested by the Lenders from the New Borrower shall have been delivered to the Lenders and such due diligence materials shall be in its sole form and unfettered discretion, substance reasonably satisfactory to the Lenders;
(C) the Borrower has furnished to the Agent each of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soilsfollowing, then the Purchaser agrees to reinstate the property to its original condition as existing prior all in form and substance reasonably satisfactory to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Agent:
(2i) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., Amendment No. 1 to this Agreement, which approval duly executed by the Borrower;
(ii) the First Amended and Restated Notes dated as of even date herewith, duly executed by the Borrower in favor of each Lender;
(iii) the First Amended and Restated Cross Agreement duly executed by Borrower and reaffirmed by each Guarantor;
(iv) the First Amended and Restated Security Agreement, executed by Borrower to the Agent, and a Pledged Account Agreement executed by each Borrower, together with:
(a) acknowledgment copies of proper financing statements relating to New Borrower (to be duly filed by the Agent on or before the Amendment No. 1 Effective Date), under the Uniform Commercial Code of all jurisdictions that the Agent may be withheld deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents, covering the Collateral described in the sole discretion Collateral Documents,
(b) completed requests for information, dated on or before the Amendment No. 1 Effective Date, listing the financing statements referred to in clause (a) above and all other effective financing statements filed in the jurisdictions referred to in clause (a) above that name the relevant New Borrower as debtor, together with copies of such Board other financing statements,
(c) evidence of Directorsthe completion of all other recordings and filings of or with respect to New Borrower that the Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby,
(d) evidence of the insurance required by the terms of the Loan Documents,
(e) evidence that all other action that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords' and bailees' waiver and consent agreements).
(3v) satisfying itself that the property is fully serviced, Amended and Restated Borrower Pledges executed by New Borrower to the lot linesAgent (for the benefit of the Lenders) together, with all municipal services (A) stock certificates evidencing the pledged Equity Interests referred to therein and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaserundated stock powers executed in blank, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor(B) acknowledgment copies of Uniform Commercial Code financing statements covering "Investment Property";
(4vi) satisfying itself that the zoning of the property will permit the use of the property Fee Split Agreement, duly executed by the Purchaser for its intended purposesBorrower;
(5vii) satisfying itself that a building permit with respect to the Purchaser's proposed construction on extent the property will be available upon compliance with normal procedures therefor.New Borrower has any Indebtedness other than Permitted Existing Indebtedness and Liens other than Permitted Existing Liens, pay-out letters, releases and UCC-3 Termination Statements, where applicable, from all third-party creditors releasing all Liens securing any such Indebtedness;
(6viii) satisfying itselfcertificates of good standing for each New Borrower from its jurisdiction of incorporation and each other jurisdiction where the nature of its business requires it to be qualified as a foreign corporation;
(ix) a copy of a certificate of the Secretary of State of the jurisdiction of incorporation of New Borrower, in its sole discretion, dated on or before the Amendment No. 1 Effective Date certifying (A) as to a true and correct copy of the certificate of incorporation (or other Charter Documents) of such Person and each amendment thereto on file in such Secretary's office and (B) that (1) such amendments are the status only amendments to such Person's certificate of all capital levies, sewer impost fees, local improvement rates, special assessments and incorporation (or other capital or similar charges against the PropertyCharter Documents) on file in such Secretary's office, (2) such Person has paid all franchise taxes to the status date of all development charges such certificate and parkland dedication levies (C) such Person is duly incorporated and in respect good standing or presently subsisting under the laws of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination State of the costs thereof. Each jurisdiction of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.incorporation;
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement of the Lenders to make the Term Loans on the Closing Date is conditional for forty-five (45) business days from acceptance of this agreement upon subject to the Purchaser;following conditions precedent:
(1a) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit Agents (or their counsel) shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form have received from each party hereto either (i) a part counterpart of this Agreement and all other Loan Documents (including, without limitation, the Security Documents) signed on behalf of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. such party or (Purchaserii) written evidence satisfactory to the Agents and ------------------------------------------------------------ METRUS PROPERTIES LTD. the Arranger (Vendorwhich may include telecopy transmission of a signed signature page of this Agreement) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------that such party has signed a counterpart of this Agreement and all other Loan Documents.
(2b) receiving The Agents shall have received a favorable written opinion (addressed to each Agent and the approval Lenders on the Closing Date and dated the Closing Date) of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇▇ Company Inc.LLP, counsel for the Borrowers covering such matters relating to this Agreementthe Borrowers, which approval may be withheld in the sole discretion of Loan Documents or the transactions contemplated thereby as the Required Lenders shall reasonably request. The Borrowers hereby request such Board of Directorscounsel to deliver such opinion.
(3c) satisfying itself that The Agents shall have received such documents and certificates as the property is fully serviced, Agents or their counsel may reasonably request relating to the lot linesorganization, with all municipal services existence and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use good standing of each member of the property Borrower Affiliated Group, the authorization of the transactions contemplated by the PurchaserLoan Documents and any other legal matters relating to the Borrower Affiliated Group, the Loan Documents or the transactions contemplated thereby, all in form and that all municipal leviessubstance reasonably satisfactory to the Agents and their counsel.
(d) The Agents shall have received a certificate from the chief financial officer, imposts and permit fees in respect thereof have been paid chief accounting officer or treasurer of the Lead Borrower, together with such other evidence reasonably requested by the Vendor;
Agents, in each case reasonably satisfactory in form and substance to the Agents, (4i) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction solvency of the Borrower Affiliated Group on a consolidated basis, as of the property will Closing Date after giving effect to the Closing Date Acquisition, and (ii) certifying that, as of the Closing Date and after giving effect to the Closing Date Acquisition, the representations and warranties made by the Borrowers in the Loan Documents are true and complete in all material respects and that no event has occurred (or failed to occur) which is or which, solely with the giving of notice or passage of time(or both) would be available upon compliance with normal procedures therefora Default or an Event of Default.
(6e) satisfying itselfAll necessary consents and approvals to the transactions contemplated hereby shall have been obtained and shall be reasonably satisfactory to the Agents, including, without limitation, consents from all requisite material Governmental Authorities and, except as would not reasonably be expected to have or result in a Material Adverse Effect, all third parties shall have approved or consented to the transactions contemplated hereby and by the Closing Date Acquisition Documents, including, without limitation, the Closing Date Acquisition, to the extent required, all applicable waiting periods shall have expired and there shall be no material governmental or judicial action, actual or threatened, that could reasonably be expected to materially restrain, prevent or impose burdensome conditions on the Closing Date Acquisition.
(f) The Administrative Agent shall have received and be satisfied with (a) a budget for the period from the Closing Date until March 31, 2009 setting forth a schedule of new stores to be opened by the Borrowers during such period, and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent. The Agents shall be reasonably satisfied that any financial statements delivered to them fairly present the business and financial condition of the Borrower Affiliated Group and that there has been no material adverse change in the assets, business, financial condition or income of the Borrower Affiliated Group, taken as a whole, since the date of such financial statements.
(g) Except as set forth on Schedule 3.6, there shall not be pending any litigation or other proceeding, the result of which could reasonably be expected to have a Material Adverse Effect on the Borrower Affiliated Group, taken as a whole.
(h) There shall not have occurred any default, nor shall any event exist which is, or solely with the passage of time, the giving of notice or both, would be a default under any Material Indebtedness of any member of the Borrower Affiliated Group.
(i) The Collateral Agent shall have received results of searches from such jurisdictions as may be reasonably required by the Collateral Agent or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the Collateral, except for Permitted Encumbrances and Liens for which termination statements and releases reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit.
(j) The Collateral Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create or perfect the second priority Liens, subject only to the Lien of the Revolving Agent under the Revolving Loan Documents intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Collateral Agent.
(k) The Collateral Agent shall have received the Blocked Account Agreements required to be delivered hereunder on or before the Closing Date.
(l) The Agents shall have received the results of a commercial financial examination and inventory appraisal, which results shall be reasonably satisfactory to the Agents.
(m) The Administrative Agent shall have entered into the Intercreditor Agreement with the Revolving Agent, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments form and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added substance satisfactory to the Property in order Administrative Agent.
(n) The Revolving Credit Agreement shall have been amended to permit the Purchaser's proposed constructiontransactions set forth herein, including, without limitation, the making of the Term Loans by the Lenders and the granting of Liens by the Borrowers to the Collateral Agent as contemplated hereunder and under the other Loan Documents.
(o) All fees due at or immediately after the Closing Date and all reasonable costs and expenses incurred by the Agents in connection with the establishment of the credit facility contemplated hereby (including the reasonable fees and expenses of counsel to the Agents) shall have been paid in full.
(p) The consummation of the transactions contemplated hereby shall not (a) violate any Applicable Law, or (b) conflict with, or result in a default or event of default under, any material agreement of Borrowers or any other member of the Borrower Affiliated Group, taken as a whole (and the Agents and the Lenders shall receive a satisfactory opinion of Borrowers’ counsel to that effect). No event shall exist which is, or solely with the passage of time, the giving of notice or both, would be a default under any material agreement of any member of the Borrower Affiliated Group.
(q) No material changes in governmental regulations or policies affecting the Borrowers, the Agents, or any Lender involved in this transaction shall have occurred prior to the Closing Date which could, individually or in the aggregate, materially adversely effect the transaction contemplated by this Agreement.
(r) There shall be no Default or Event of Default on the Closing Date.
(s) The Collateral Agent shall have received, and the determination be satisfied with, evidence of the costs thereofBorrowers’ insurance, together with such endorsements as are required by the Loan Documents.
(t) There shall not have occurred any disruption or material adverse change in the financial or capital markets in general that would, in the reasonable opinion of the Agents, have a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
(u) There shall not have occurred any change, effect, event, occurrence or state of facts that is materially adverse to the business, financial condition, or results of operations of Micromania or its Subsidiaries.
(v) The Closing Date Acquisition shall have been or shall concurrently be consummated on the terms set forth in the Closing Date Acquisition Documents, with such modifications as the parties thereto may agree (other than amendments, modifications or waivers which are materially adverse to the Lenders, which modifications, amendments or waivers shall be reasonably acceptable to the Agents and the Arranger).
(w) There shall have been delivered to the Administrative Agent such additional instruments and documents as the Agents or counsel to the Agents reasonably may require or request. Each The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make the Term Loans hereunder shall not become effective unless each of the foregoing conditions is for the sole benefit of the Purchaser and may be satisfied (or waived by the Purchaser pursuant to Section 9.2) at or prior to 5:00 p.m., New York time, on November 12, 2008 (and, in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has such conditions are not been fully so satisfied on or before the forty fifth (45th) business day from the acceptance of waived, this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidterminate at such time).
Appears in 1 contract
Sources: Term Loan Agreement (GameStop Corp.)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five Lender’s forbearance shall be further subject to the satisfaction of the following conditions:
(45a) business days from acceptance Upon execution of this agreement Forbearance Agreement, Borrower shall pay to Agent or lender, as applicable, all costs and expenses incurred by Agent and Lender in connection with or as a result of Borrower’s default under the Loan Documents and the preparation, negotiation and execution of this Forbearance Agreement, including, without limitation, all legal fees arid costs, which lees and costs shall be charged by Lender as a Revolving Loan and retained by Lender in satisfaction o f Borrower’s reimbursement obligation,
(b) Upon execution of this Forbearance Agreement, there shall be due to lender a forbearance fee (the “Forbearance Fee”) in the amount of Fifty Thousand Dollars ($50,000.00). The Forbearance hoe shall be deemed earned in full on the date of execution of this Forbearance Agreement and shall be non-refundable. Provided, however, as an accommodation to Borrower, the Forbearance Fee shall be payable, in full upon the Purchaser;
(1) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of DirectorsForbearance Termination Date.
(3c) satisfying itself that Contemporaneously with the property is fully servicedexecution of this Forbearance Agreement, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same Lender shall have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use received each of the property by the Purchaserfollowing, in form and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;substance acceptable to Lender:
(4i) satisfying itself that an Amended and Restated Demand Revolving Credit Note in the zoning face amount of the property will permit the use of the property by the Purchaser for its intended purposes;Three Million Dollars ($3,000,000,00); and
(5ii) satisfying itself that a building permit with respect to the Purchaser's proposed construction on Corporate Resolution of Borrower, authorizing the property will be available upon compliance with normal procedures thereforexecution and delivery of this Forbearance Agreement.
(6d) satisfying itselfObligors shall furnish to Agent and Lender such additional financial information, in its sole discretion, documents and information as Agent or Lender may request from time to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructiontime, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the PurchaserBorrower shall permit Agent, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deductionLender, and the Purchaser their agents and employees to enter upon its business premises, and to inspect its books and records, to make extracts therefrom and to discuss its affairs with its employees, agents and officers, and to conduct field audits and inventory evaluations, at such times as Agent shall have no further obligations to the Vendor under this Agreement except as aforesaidelect, all at Borrower’s expense.
Appears in 1 contract
Conditions. The Purchaser's obligation under This Amendment shall not be effective unless and until:
(a) Revolver Administrative Agent and Term Administrative Agent shall have received this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon Amendment duly executed by Borrower, Guarantors, Revolver Administrative Agent, Term Administrative Agent, and the PurchaserAggregate Majority Lenders;
(1b) satisfying itself the representations and warranties in its sole this Amendment are true and unfettered discretion, correct in all material respects on and as of the environmental & soil conditions date of this Amendment;
(c) Revolver Administrative Agent and Term A Administrative Agent shall have received an officer’s certificate of Borrower certifying (i) the constituent documents of Borrower (or any changes thereto, if any, since the date last certified to Revolver Administrative Agent and Term A Administrative Agent), (ii) the incumbency of the property at its own expense. If said testing requires any disturbance officers of soilsBorrower authorized to execute the Amendment Documents, then (iii) certificate of existence and good standing of Borrower certified by the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking Secretary of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out State of the testing and; 4 SCHEDULE "A" Page Two To be read with State of Delaware, and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaseriv) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of resolutions adopted by the Board of Directors of its parent companyBorrower authorizing the execution, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc.delivery, to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use performance of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorAmendment Documents;
(4d) satisfying itself Revolver Administrative Agent shall have received (i) either (A) for the benefit of each Revolver Lender that provides both their consent to the zoning terms of this Amendment (subject to appropriate documentation) by 3:00 p.m., New York time, on May 9, 2008 and their signature pages to this Amendment by noon, New York time, May 13, 2008, a fee equal to the product of (x) the amount of such Revolver Lender’s Commitment on the effective date of, and after giving effect to, this Amendment, times (y) 0.20% or (B) for the benefit of each Revolver Lender that provides only their signature pages to this Amendment by noon, New York time, May 13, 2008, a fee equal to the product of (x) the amount of such Revolver Lender’s Commitment on the effective date of, and after giving effect to, this Amendment, times (y) 0.15% and (ii) such other fees (without duplication of the property will permit 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 use of the property by the Purchaser for its intended purposesRevolving Credit Agreement;
(5e) satisfying itself Term A Administrative Agent shall have received (i) either (A) for the benefit of each Term A Lender that a building permit with respect provides both their consent to the Purchaser's proposed construction terms of this Amendment (subject to appropriate documentation) by 3:00 p.m., New York time, on May 9, 2008 and their signature pages to this Amendment by noon, New York time, May 13, 2008, a fee equal to the product of (x) the amount of such Term A Lender’s Commitment on the property will be available upon compliance with normal procedures therefor.effective date of, and after giving effect to, this Amendment, times (y) 0.20% or (B) for the benefit of each Term A Lender that provides only their signature pages to this Amendment by noon, New York time, May 13, 2008, a fee equal to the product of (x) the amount of such Term A Lender’s Commitment on the effective date of, and after giving effect to, this Amendment, times (y) 0.15% 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;
(6f) satisfying itselfIn 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 Term A Credit Agreement and each of the other Loan Documents to the extent that invoices are presented to Borrower for payment prior to 5:00 p.m., eastern time, on May 9, 2008 (with any invoice submitted after that time being payable by Borrower promptly after such invoice is delivered to Borrower); and
(g) Revolver Administrative Agent shall have received from Borrower (i) documentation, satisfactory to Revolver Administrative Agent in its reasonable discretion, withdrawing, rescinding and canceling all Requests for Borrowings under the Revolving Credit Agreement that have not been funded by all Revolver Lenders and all Requests for Letters of Credit that have not been issued under the Revolving Credit Agreement, in its sole discretion, as to each case requested before the Fourth Amendment Effective Date and (1ii) the status repayment by Borrower of all capital leviesamounts funded under such requests by any Lender that funded Borrowings under such requests, sewer impost feestogether with all accrued and unpaid interest thereon, local improvement rates, special assessments and which payments shall not be shared with any other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidLenders.
Appears in 1 contract
Sources: Revolving Credit Agreement and Term Loan a Credit Agreement (Standard Pacific Corp /De/)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchasersatisfaction of all of the following conditions precedent (the date such conditions precedent are satisfied being referred to as the “Effective Date”):
(a) the execution and delivery of this Amendment by each Loan Party, Agent and each Lender;
(1b) satisfying itself all representations and warranties contained in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination Section 5 of this agreement. If the agreement is terminated all environmental testing Amendment being true, correct and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendorcomplete;
(4c) satisfying itself that no Default or Event of Default under any Loan Document has occurred and is continuing, and no Default or Event of Default would arise under any Loan Document after giving effect to the zoning of the property will permit the use of the property transactions contemplated by the Purchaser for its intended purposesthis Amendment;
(5d) satisfying itself each Lender that has agreed to increase its Revolving Loan Commitment pursuant to this Amendment shall have received a building permit replacement Revolving Note issued by Borrower to such Lender which evidences such Lender’s aggregate Revolving Loan Commitment after giving effect to this Amendment;
(e) payment by Borrower of all reasonable out-of-pocket costs and expenses of Agent incurred in connection with respect the preparation, due diligence and negotiation of this Amendment and all agreements, documents and instruments entered into by a Loan Party in connection herewith (including all Attorney Costs incurred by Agent);
(f) Borrower shall have delivered to Agent evidence reasonably satisfactory to Agent that Borrower is in compliance with the financial covenants set forth in Article VI of the Credit Agreement for the most recently ended fiscal quarter, recomputed on a pro forma basis to give effect to the Purchaser's proposed construction transactions contemplated herein;
(g) receipt by Agent of evidence reasonably acceptable to Agent that all necessary corporate action on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itselfpart of each Loan Party has been taken to approve the consummation of the Groundmasters Acquisition, the increase in its sole discretion, as to (1) the status Aggregate Revolving Loan Commitment and borrowing of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructionRevolving Loans hereunder, and the determination other transactions contemplated herein applicable to such Loan Party and this Amendment;
(h) the Groundmasters Acquisition shall have been consummated simultaneously herewith on the Effective Date in material compliance with all Requirements of Law and the terms and provisions of the costs thereof. Each Groundmasters Acquisition Agreement without waiver of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole any material term or in part by Notice to the Vendor. In the event that any condition contained herein thereof which has not been fully satisfied approved by Agent;
(i) Borrower shall have delivered to Agent a Borrowing Base Certificate, prepared on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come a pro forma basis to an end and the deposit and all interest earned thereon shall be returned give effect to the Purchaser without deductiontransactions contemplated herein, and setting forth the Purchaser Borrowing Base of Borrower as at the date hereof;
(j) Borrower shall have no further obligations complied, to Agent’s reasonable satisfaction, with the Vendor under this Agreement except requirements set forth in Section 4.11(b) of the Credit Agreement; and
(k) Agent shall have received such other approvals, opinions, documents or materials as aforesaidit shall have reasonably requested.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for fortyIssues Pertaining to Freshwater Wetlands
(a) By October 16, 2013, New Castle shall record a Conservation Easement against their lots which reflects the terms agreed to between Westerly Granite and New Castle as referenced in the June 13, 2013 communication, attached hereto as “Attachment B”.
(b) By October 31, 2013 Westerly Granite and Copar shall complete all wetland restoration work as described below in those areas depicted on the attached aerial photographs as “Area 1 – Copar Quarries of Westerly”, “Copar Quarries of Westerly – Area 2”, “Copar Quarries of Westerly – Areas 3-five 5”, and Copar Quarries of Westerly – Area 6”, attached hereto and incorporated herein as “Attachment C”.
(45i) business days from acceptance of this agreement upon the Purchaser;Area 1
(1) satisfying itself The stream course shall be relocated in its sole and unfettered discretion, the approximate location shown on the photograph. Elevations of the environmental & soil conditions relocated stream must be sufficient to convey water across the old cartpath, through the understory of the property at its own expenseforest, through the berm in the forest, and to the crest of the slope that leads to the Swamp to the northwest. Minimum disturbance must occur in the forested area when constructing the stream channel. If said testing requires any disturbance of soilsnecessary, then a riprap pad shall be installed at the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out outfall of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------culvert under the dirt roadway.
(2) receiving the approval Ten (10) to fifteen (15) feet of the Board old stream course must be filled up to the surrounding grade with a properly compacted very fine sand or silt material beginning at a point immediately adjacent to the outfall of Directors the culvert under the dirt roadway.
(3) A crushed stone berm shall be installed along the dirt roadway in the approximate area shown on the photograph.
(ii) Area 2
(1) Fill shall be excavated from an area beginning at the existing wetland edge and extending to a line defined in the field by RIDEM on July 17, 2013. The line runs from one large tree to another in a location approximately identified on Attachment B. All fill must be removed down to, or slightly below, the adjacent undisturbed wetland grade.
(2) Haybales or silt fence must be installed in the area in such a manner to prevent erosion and sedimentation of its parent companythe restored area and adjacent undisturbed wetlands.
(iii) Areas 3A and 3B
(1) Grade all stone and boulders away from the quarry ponds, Russ ▇▇cover all disturbed surface areas with plantable soil, seed all areas with a wildlife conservation grass mixture, and plant with native trees and shrubs. Balled and burlapped or transplanted tree species must be planted in an interspersed fashion, ten (10) feet on center, four (4) feet tall after planting, throughout the areas defined above. Tree species must include an equal distribution of at least two (2) of the following selections: White pine, Pinus strobus Northern white cedar, Thuja occidentalis Red maple, Acer rubrum White ash, Fraxinus americana White oak, Quercus alba Northern red oak, Quercus rubra Black birch, Betula lenta Balled and burlapped or transplanted shrub species must be planted in an interspersed fashion five (5) feet on center, three (3) feet tall after planting, throughout the area defined above. Shrub species must include an equal distribution of at least three (3) of the following selections: Mountain laurel, Kalmia latifolia Gray (stiff, red panicle) dogwood, Cornus foemina racemosa Silky dogwood, Cornus amomum Arrowwood (southern), Viburnum dentatum American cranberrybush, Viburnum trilobum Mapleleaf viburnum, Viburnum acerifolium Highbush blueberry, Vaccinium corymbosum Lowbush blueberry, Vaccinium angustifolium Sweet pepperbush, Clethra alnifolia Bayberry, Myrica pennsylvanica Black chokeberry, Aronia melanocarpa Witchhazel, Hamamelis virginiana
(2) To ensure the survival of all plantings, each planting hole must be cleared of any underlying rock and properly prepared to a depth of eighteen (18) inches.
(3) Install a haybale or silt fence erosion barrier around the restored areas to prevent sedimentation of the restored areas and the adjacent quarry ponds.
(4) If necessary, install a crushed stone berm around the erosion controls.
(5) If any or all of the required plantings fail to survive at least two
(2) years from the time that planting has been verified by RIDEM, the same plant species shall be replanted and maintained until such time that survival is maintained over two (2) full years.
(iv) Area 4 A crushed stone berm shall be installed along both sides of the dirt roadway in the approximate area depicted on Attachment B.
(v) ▇▇▇▇ ▇▇▇ Company Inc.
(1) The area shall be seeded with a wildlife conservation grass mixture and covered with a mat of loose hay.
(2) If necessary, a crushed stone berm shall be installed around the erosion controls.
(vi) Area 5B
(1) Within the area depicted, the dirt road shall be moved at least thirty (30) feet (horizontally - without regard to this Agreementtopography) from the water’s edge and all stone and boulders on the top of the slope shall be graded away from the quarry pond. The top of the slope shall be covered with plantable soil and all areas shall be seeded with a wildlife conservation grass mixture and covered with a mat of loose hay.
(2) If necessary, which approval may a crushed stone berm shall be withheld installed around the erosion controls.
(vii) Area 6
(1) Remove all rock and other fill remaining in the sole discretion forested wetland.
(2) Haybales or silt fence must be installed in the area in such a matter to prevent erosion and sedimentation of such Board of Directorsthe restored area and adjacent undisturbed wetlands.
(3) satisfying itself that If necessary, a crushed stone berm shall be installed around the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforerosion controls.
(6c) satisfying itselfAll restored wetland areas, including replanted areas, must be allowed to revegetate naturally and revert to a natural wild state. No future clearing, mowing, cutting, trimming, or other alterations are allowed in its sole discretionthe restored wetland areas, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and or within other capital or similar charges against freshwater wetlands on the Property, without first obtaining a permit from RIDEM.
(2d) the status Upon stabilization of all development charges disturbed areas all artificial erosion and parkland dedication levies in respect of the Property sedimentation controls (e.g., silt fences and (3silt curtains) whether top soil must be removed from or added the freshwater wetlands. Staked haybales, spread hay mulch, and other naturally-based/bio-degradable erosion control measures may remain in place to decompose naturally. Prior to the Property in order removal of the controls all accumulated sediment must be removed to permit a suitable upland area and all disturbed surfaces must be stabilized as described above.
(e) With the Purchaser's proposed exception of any work required by this Agreement or as allowed as an exempt activity under the RIDEM’s Rules and Regulations for Governing the Administration and Enforcement of the Freshwater Wetlands Act, Rule 6.00, the Respondents shall not alter the character of any freshwater wetland by undertaking any additional activities, including, but not limited to, construction, excavation, filling, grading and the determination removal of vegetation without prior written approval of RIDEM.
(f) By October 4, 2013 Copar and Westerly Granite shall submit a revised Stormwater Application that addresses all of the costs thereofdeficiencies in the Stormwater Application Deficiency Letter and include a schedule to complete all work proposed (the “Revised Stormwater Application”). Each The plans for the Revised Stormwater Application must incorporate and be consistent with all of the foregoing conditions freshwater wetland restoration requirements in the areas described above.
(g) The Revised Stormwater Permit Application is subject to RIDEM’s review and approval. Upon review, RIDEM shall provide written notification to Westerly Granite and Copar either granting formal approval or stating the deficiencies therein. Within fourteen (14) days (unless a longer time is specified) of receiving a notification of deficiencies, Westerly Granite and Copar shall submit to RIDEM a revised application or additional information necessary to correct the deficiencies.
(h) Upon RIDEM’s approval of the Revised Stormwater Application, Copar and Westerly Granite shall complete all work required in the application in accordance with the approved schedule.
(i) Penalty – Respondents shall pay to RIDEM the sum of Seven Thousand Five Hundred Dollars ($7,500.00) in settlement of administrative penalties assessed in the NOV as follows:
(i) Upon execution of this Agreement by the Respondents, the Respondents shall pay to RIDEM the sum of Seven Thousand Five Hundred Dollars ($7,500.00). Said settlement sum shall be allocated among the Respondents, and paid by the Respondents to RIDEM as follows: Three Thousand Seven Hundred and Fifty and 00/100 Dollars ($3,750.00) – Westerly Granite and Three Thousand Seven Hundred and Fifty and 00/100 Dollars ($3,750.00) – Copar. Respondents Westerly Granite and Copar shall not be jointly and severally liable for the sole aggregate settlement sum agreed to pursuant to this Agreement.
(ii) Sums that the Respondents agree to pay in settlement of assessed penalties are payable to and for the benefit of the Purchaser State of Rhode Island and may are not compensation for actual pecuniary loss.
(iii) All payments shall be waived by in the Purchaser in its sole discretion in whole form of a certified check, cashiers check, or in part by Notice money order, payable to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.R.
Appears in 1 contract
Sources: Consent Agreement
Conditions. The Purchaser's obligation right of Parent to pay all or any portion of any Contingent Payment to any Participating Rights Holder through the delivery of shares of Parent Stock shall, upon the date such shares are issued to such Participating Rights Holder, be subject to the satisfaction of all of the following conditions:
(i) any and all such shares shall either be (A) saleable, subject to any restrictions that would be imposed as a result of such Participating Rights Holder being an “affiliate” pursuant to Rule 144 under this Agreement the Securities Act, on the date of delivery, without requiring further registration under the Securities Act and without any further holding period being imposed by the Securities Act, or (B) the subject of a registration statement on Form S-3 (or any successor form), which shall be effective on the date of delivery of such shares, provided that Parent shall use best efforts to maintain the effectiveness of such registration statement for a period of at least 12 months following the date of the issuance of Parent Stock (or until such earlier date on which all of the shares of Parent Stock covered by such registration statement have been actually sold), provided, further, if such registration statement (or a successor registration statement on Form S-3 covering such shares of Parent Stock) is conditional no longer effective for forty-a period of time in excess of five (455) business consecutive trading days from acceptance during such 12-month period, then each Participating Rights Holder holding shares of Parent Stock issued pursuant to this agreement upon Registration Statement shall be entitled, as such Participating Rights Holder’s sole and exclusive remedy in respect of such failure of such registration statement to be effective, to cause the PurchaserParent to repurchase some or all of such shares of Parent Stock (unless such shares are then freely saleable, subject to any restrictions that would be imposed as a result of such Participating Rights Holder being an “affiliate” pursuant to Rule 144 under the Securities Act, without requiring further registration under the Securities Act and without any further holding period being imposed by the Securities Act, or unless such repurchase is otherwise prohibited by Law), by written notice given to Parent (which written notice shall constitute an irrevocable offer to sell such shares to Parent at the price specified in this Section 1.8(b)(i)) on any such date when such registration statement is not effective, at a price equal to the closing price of a share of Parent Stock on the principal exchange on which the Parent Stock is then traded on the date on which such notice is received by Parent;
(1ii) satisfying itself in its sole any and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any all such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shares shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for listed on each securities exchange on which similar securities, including as to class and none will be charged as local improvementsseries, that same issued by Parent are sufficient for the proposed use then listed, subject only to notice of the property by the Purchaserissuance, and that all municipal levies, imposts and permit fees in respect thereof have been paid by on the Vendor;
(4) satisfying itself that the zoning date of the property will permit the use delivery there shall be no suspension of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit trade with respect to the Purchaser's proposed construction tradeability of the Parent Stock issued to the Participating Rights Holders hereunder on the property will be available upon compliance with normal procedures therefor.such securities exchange; and
(6iii) satisfying itself, in its sole discretion, as to (1) the status of any and all capital levies, sewer impost fees, local improvement rates, special assessments such shares shall have been duly authorized and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructionreserved for issuance, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser upon issuance thereof in accordance with this Agreement, be validly issued, fully paid and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidnonassessable.
Appears in 1 contract
Sources: Merger Agreement (Teradyne, Inc)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchaser;satisfaction or waiver of the following conditions precedent (the date of satisfaction of all such conditions precedent shall be referred to herein as the “First Amendment Effective Date”):
(1a) satisfying itself in its sole the execution and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination delivery of this agreement. If Amendment by the agreement is terminated all environmental testing Loan Parties and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ L▇▇▇▇▇▇ ;
(b) Lender shall have received the Supplemental Term Loan Promissory Note duly executed by the Borrowers;
(c) L▇▇▇▇▇ Company Inc.shall have received the First Amendment to Guaranty and Security Agreement duly executed by the Loan Parties;
(d) L▇▇▇▇▇ shall have received a certificate of the secretary (or other equivalent officer, to this Agreementpartner or manager) of each Borrower, dated as of the First Amendment Effective Date, which approval may be withheld shall certify (i) copies of resolutions in form and substance satisfactory to Lender of the sole discretion board of directors (or other equivalent governing body, member, manager or partner) of such Board Borrower authorizing the execution, delivery and performance of Directorsthis Amendment and each other Loa Document executed by such Borrower in connection herewith, (ii) the incumbency and signature of the officers of such Borrower authorized to execute this Amendment and each other Loa Document executed by such Borrower in connection herewith, (iii) copies of the Organizational Documents of such Borrower as in effect on such date, complete with all amendments thereto (or a certification from such Borrower that the Organizational Documents of such Borrower attached to the officer certificate of such borrower, dated as of the Closing Date and delivered to Lender by such Borrower, are in full force and effect on the date hereof and have not been amended, modified, terminated or rescinded in any respect), and (iv) the good standing (or equivalent status) of such Borrower in its jurisdiction of organization as evidenced by good standing certificate(s) (or the equivalent thereof issued by any applicable jurisdiction) dated not more than thirty (30) days prior to the First Amendment Effective Date, issued by the Secretary of State or other appropriate official of each such jurisdiction.
(3e) satisfying itself that Lender shall have received a legal opinion of Borrowers’ counsel as L▇▇▇▇▇ shall reasonably request in connection with the property is fully servicedtransactions contemplated by this Amendment, in form and substance reasonably satisfactory to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorLender;
(4f) satisfying itself that the zoning Lender shall have received satisfactory results of the property will permit the use of the property by the Purchaser for its intended purposeslien, good standing and other searches as Lender may require;
(5g) satisfying itself that no Default or Event of Default currently exists or would immediately result after giving effect to this Amendment;
(h) Lender shall have received a building permit Notice of Borrowing with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.Supplemental Term Loan;
(6i) satisfying itselfthe representations and warranties in Section 4 hereof being true, correct and complete in all material respects (without duplication of any materiality qualifier in such representations or warranties), except to the extent that any such representation or warranty relates to a specific earlier date, in its sole discretion, which case such representation and warranty shall be true and correct in all material respects as to of such earlier date (1without duplication of any materiality qualifier in such representations or warranties);
(j) Lender shall have received such other documents or financial statements as Lender may reasonably request; and
(k) the status of Borrowers shall have paid to Lender the Supplemental Term Loan Closing Fee and all capital levies, sewer impost fees, local improvement rates, special assessments fees and other capital or similar charges against expenses for the Property, (2) the status of all development charges and parkland dedication levies Administrative Borrower is provided an invoice at least one Business Day in respect advance of the Property and (3date hereof) whether top soil must be removed from or added owing to the Property Lender in order to permit the Purchaser's proposed construction, connection with this Amendment and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidtransactions contemplated herein.
Appears in 1 contract
Sources: Credit Agreement (American Shared Hospital Services)
Conditions. The Purchaser's obligation under this Agreement Any redesignation of Eligible Accounts as provided in Section 2.08(a) is conditional for forty-five subject to the satisfaction of the following conditions:
(45i) business days the Transferor has delivered to the Servicer (if the Servicer is not NMAC) on such Redesignation Date a written notice, substantially in the form attached as Exhibit B, directing the Servicer to select as Redesignated Accounts those Eligible Accounts whose Principal Receivables approximately equal the amount of Receivables specified by the Transferor to be removed from acceptance of this agreement upon the PurchaserTrust Assets on the Redesignation Date;
(1) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1ii) the status of all capital leviesTransferor (or the Servicer on its behalf) has, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth Redesignation Date, delivered to the Owner Trustee and the Indenture Trustee the applicable Redesignated Account Schedule;
(45thiii) business day from the acceptance Rating Agency Condition has been satisfied; and
(iv) the Transferor has represented and warranted that:
(A) the redesignation of this Agreement any such Eligible Accounts (and the related Receivables) on the Redesignation Date will not, in the reasonable belief of the Transferor, cause an Early Amortization Event to occur or waived cause the Adjusted Pool Balance to be less than the Required Participation Amount;
(B) the Redesignated Accounts were not chosen through a selection process that was materially adverse to the interests of the Noteholders, the holders of the Transferor Interest or any Series Enhancers; and
(C) the Redesignated Account Schedule delivered pursuant to clause (ii) above is true and correct in all material respects as of its date. On the Redesignation Date with respect to any such Redesignated Account, the Transferor will cease to transfer to the Issuer any Receivables arising in connection with such Redesignated Account. Unless such redesignation is accompanied by repurchase of the related outstanding Receivables, Principal Collections relating to such Redesignated Account will be allocated first to outstanding Receivables owned by the PurchaserIssuer relating to such Account until the amount of such Receivables (measured as of the Redesignation Date) has been reduced to zero, this agreement shall come to an end and the deposit and all interest earned thereon shall Interest Collections will be returned allocated to the Purchaser without deductionIssuer on the basis of the ratio of the Principal Receivables owned by the Issuer in connection with such Account on the date of determination to the total amount of Principal Receivables in connection with such Account on such date of determination, and the Purchaser shall have no further obligations remainder of such Interest Collections will be allocated to the Vendor under this Agreement except as aforesaidTransferor. After the Redesignation Date and upon written request of the Servicer, the Owner Trustee will deliver to the Transferor a Reassignment.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Nissan Wholesale Receivables Corp Ii)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five Holder shall not be obligated hereunder to make the Loans unless the following conditions shall have been satisfied:
(45A) business days from acceptance of this agreement upon The Holder shall have received on or before the Purchaser;Closing Date the following all, where applicable, in form and substance satisfactory to the Holder:
(1) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------executed Notes,
(2) receiving the approval an executed counterpart of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.Guaranties,
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use an executed counterpart of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;this Loan Agreement,
(4) satisfying itself that the zoning an executed counterpart of the property will permit the use of the property by the Purchaser for its intended purposes;Pledge Agreement,
(5) satisfying itself that a building permit with respect the stock or other Evidence Of Ownership which is the subject of the Pledge Agreements,
(a) the facility fee of the Holder described in Section 201(B) hereof and (b) the Holder's reasonable counsel fees,
(7) opinion of counsel for the Company, the Corporate Guarantors and any International Subsidiary in form and substance reasonably satisfactory to the Purchaser's proposed construction on Holder and its counsel; and
(8) acquisition agreements with the property will be available upon compliance with normal procedures thereforTarget Entity.
(6B) satisfying itself, in its sole discretion, The Holder's counsel shall have received (and approved as to (1appropriate) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth Closing Date copies of:
(45th1) business day from With respect to the acceptance Company, an executed closing certificate together with a certified copy of this Agreement or waived the articles of incorporation as filed with the Maryland Secretary of State together with all amendments thereto, a good standing certificate issued by the PurchaserMaryland Secretary of State, this agreement shall come a certificate of authority to conduct business in New York State, a certified copy of the by-laws and an end approval of the board of directors authorizing the execution and delivery and performance of the deposit Financing Documents, and
(2) With respect to each of the Corporate Guarantors and any International Subsidiary, an executed closing certificate together with a certified copy of the articles of incorporation as filed with the jurisdiction of incorporation of such, together with all interest earned thereon shall be returned amendments thereto, a good standing certificate issued by said jurisdiction of incorporation, a certified copy of the by-laws and an approval of the board of directors and shareholders authorizing the execution and delivery and performance of the Financing Documents to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidwhich it is a party.
Appears in 1 contract
Sources: Loan Agreement (Balchem Corp)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance No part of this agreement upon Amendment shall become effective until Borrower shall have delivered (or shall have caused to be delivered) to Lender each of the Purchaserfollowing, in Proper Form:
(A) certificates dated as of the date hereof of the Secretary or any Assistant Secretary of the Borrower authorizing the execution, delivery and performance of this Amendment, and such other related documents and information as Lender may request;
(1B) satisfying itself all such Security Instruments as the Lender may require in its sole order to create and unfettered discretionperfect a first priority Lien upon the Property acquired under that certain Purchase and Sale Agreement (the "Burrwood Contract") dated as of February 11, 2000 executed by and between Energy Development Corporation and the Borrower, together with all such letters in lieu of transfer orders relating to such Property as the Lender may require;
(C) all such Security Instruments as the Lender may require in order to create and perfect a first priority Lien upon the rights, titles and interests of the environmental & soil conditions Borrower in and to any funds held in Account Number 5149 maintained at Compass Bank in the name of Borrower, together with an acknowledgment executed by the property at its own expense. If said testing requires any disturbance ascrow agent in respect of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior such funds;
(D) evidence satisfactory to the undertaking of any such soil tests, Lender that (i) the transaction contemplated by the Burrwood Contract (without amendment except as approved in writing by the event of termination of this agreement. If the agreement is terminated all environmental testing Lender) shall have been consummated and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaserii) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇▇▇ ▇▇▇ Company Inc., shall have received a net amount equal to or greater than $4,200,000 from the issuance of its common stock substantially concurrent with the execution and delivery of this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorAmendment;
(4E) satisfying itself evidence satisfactory to the Lender that the zoning Borrower shall have deposited with the Lender at least $500,000 shall have been deposited with the Lender in an account in the name of the property will permit Borrower (the use parties agreeing that withdrawals from such account shall require the written consent of the property by Lender, which shall be granted so long as the Purchaser Lender shall have received evidence satisfactory to the Lender that the amounts to be withdrawn represent payment for its intended purposesor reimbursement of amounts expended in satisfaction of the seismic requirements under the Burrwood Contract);
(5F) satisfying itself that a building permit with respect to Lender's facility fee in the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.amount of $30,000; and
(6G) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect evidence of the Property payment of any and all legal fees and expenses incurred to date by Lender in connection with this Amendment (3) whether top soil must be removed from or added to including, without limitation, the Property in order to permit the Purchaser's proposed construction, negotiation and preparation of this Amendment and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidrelated Loan Documents).
Appears in 1 contract
Conditions. The Purchaser's obligation under obligations of the Agent and the Lenders to enter into this Agreement is conditional for forty-five and to advance $12,000,000 on the Closing Date are subject to the satisfaction of the following conditions precedent that (45a) business days from acceptance all matters incident to the consummation of the transactions contemplated herein shall be reasonably satisfactory to the Agent and the Lenders and (b) the Agent shall have received, reviewed and approved the following documents and other items, appropriately executed when necessary and, where applicable, acknowledged by one or more Responsible Officers or other duly authorized representatives of each of the Borrowers party to a relevant document or of the General Partner of certain of the Borrowers party to a relevant document, as the case may be, acting on behalf of the relevant Borrower, or others as the case may be, all in form and substance reasonably satisfactory to the Agent and dated, where applicable, of even date herewith or a date prior thereto and acceptable to the Agent:
(a) multiple counterparts of this agreement upon Agreement as requested by the PurchaserAgent;
(b) the Notes to be in effect on the Closing Date;
(c) copies of the organizational documents of each of the Borrower, accompanied by a certificate dated the Closing Date issued by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner, to the effect that each such copy is correct and complete;
(d) a certificate of incumbency dated the Closing Date, including specimen signatures of all officers or other representatives of the relevant Borrower or its General Partner, who are authorized to execute Loan Documents on behalf of the relevant Borrower or its General Partner, such certificate being executed by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner;
(e) copies of resolutions adopted by the relevant governing body each of the Borrowers or of its General Partner approving the Loan Documents to which the relevant Borrower is a party and authorizing the transactions contemplated herein and therein, accompanied by a certificate dated the Closing Date issued by the secretary or an assistant secretary or another authorized representative of the relevant Borrower or its General Partner, to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by unanimous consent and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified or rescinded in any respect and are in full force and effect as of the date of such certificate;
(f) subject to the provisions of clause (d) of Section 5.24, the following documents establishing Liens in favor or for the benefit of the Agent for the benefit of the Lenders, in and to the Collateral, including Mortgaged Properties constituting one hundred percent (100%) of the aggregate discounted present value, determined by the Agent, consistent with the customary lending practices of the Agent, of the Proved Reserves attributable to the Oil and Gas Properties of the Borrowers or any of them:
(i) security documents covering all Oil and Gas Properties (for the avoidance of doubt, including fee mineral interests) of the Borrowers or any of them sufficient for the Borrowers to be in compliance with the provisions of Section 5.5;
(ii) security documents covering assets of each of the Borrowers as to which a security interest against such assets may be created and perfected under the provisions of the UCC or the Uniform Commercial Code as adopted and in effect in states of the United States of America other than the State of New York, including the Equity Interests in each of the Borrowers;
(iii) financing statements constituent to the documents described in clauses (i) and (ii) above in this Section 3.2(f);
(iv) the Direction Letters (as executed only by one or more of the Borrowers);
(v) undated letters, in form and substance reasonably satisfactory to the Agent, from each of the Borrowers owning interests in Oil and Gas Properties (for the avoidance of doubt, including fee mineral interests) or interests in any pipelines or gathering systems transporting natural gas or petroleum products (A) owned by Persons other than the Borrower owning such interests or (B) owned by the Borrower owning such interests and to be sold to others to each purchaser of production and disburser of the proceeds of production from or attributable to the Mortgaged Properties or transportation fees, with the addresses left blank, authorizing and directing the addresses to make future payments attributable to production from the Mortgaged Properties owned by the relevant Borrower or transportation fees directly to the Lockbox of such Borrower;
(vi) a Blocked Account Agreement among MOMC, LegacyTexas Bank and the Agent with respect to the Lockbox Account; and
(vii) a Deposit Account Control Agreement with shifting control among the Borrowers, the Agent and LegacyTexas Bank with respect to each Operating Account.
(g) a copy of the Lockbox Services Agreement between MOMC and LegacyTexas Bank;
(h) multiple counterparts of the Subordination Agreement, as requested by LegacyTexas Bank;
(i) multiple counterparts of the Assignment of ORRI;
(j) copies of the East LA PSA and each amendment thereto through the Seventh Amendment to Purchase and Sale Agreement dated June 2, 2016;
(k) a copy of a fully executed counterpart of the East LA Operating Agreement;
(l) a copy of a fully executed counterpart of an additional amendment to the East LA PSA extending the deadline for the closing of the acquisition by MI which is the subject of the East LA PSA to a date no earlier than June 15, 2016;
(m) copies of fully executed counterparts of the Sansinena PSA and each amendment thereto through the Eighth Amendment to Purchase and Sale Agreement dated June 2, 2016;
(n) a copy of a fully executed counterpart of the Sansinena Operating Agreement;
(o) a copy of a fully executed counterpart of an additional amendment to the Sansinena PSA extending the deadline for the closing of the acquisition by MI which is the subject of the Sansinena PSA to a date no earlier than June 15, 2016;
(p) a copy of a fully executed counterpart of the Joint Acquisition Agreement; Operating Agreement dated effective April 1, 2016 between MI, as Operator, and Sunny Frog Oil, LLC;
(q) satisfying itself a copy of a fully executed counterpart of the conveyance by MI to Sunny Frog Oil, LLC pursuant to the Joint Acquisition Agreement;
(r) a copy of the Development Plan;
(s) copies of executed counterparts of all operating, lease, sublease, royalty, sales, exchange, processing, farmout, bidding, pooling, unitization, communitization and other agreements relating to the Oil and Gas Properties (for the avoidance of doubt, including fee mineral interests) of the Borrowers or any one or more of them, as reasonably requested by the Agent or any Lender prior to the Closing Date;
(t) a Reserve Report prepared as of January 1, 2016 and in compliance with the requirements for engineering reports set forth in the definition of Reserve Report in Section 1.2.
(u) drafts of the not yet issued annual audited Financial Statements prepared as of December 31, 2015 and unaudited quarterly Financial Statements prepared as of March 31, 2016;
(v) payment of structuring fee in the amount of $240,000;
(w) copies of all employment agreements between any of the Borrowers and members of the senior management of the relevant Borrower;
(x) certificates dated as of a recent date from the appropriate Governmental Authority evidencing the existence or qualification and, if applicable, good standing of each of the Borrowers in its sole jurisdiction of organization and unfettered in each jurisdiction in which it owns material assets or conducts material operations;
(y) results of searches of the uniform commercial code records of the Secretary of State of the State of California and the Secretary of State of the State of Texas, as applicable, in the names of each of the Borrowers, such search reports to be from a source or sources acceptable to the Lender and reflecting no Liens, other than Permitted Liens, against any of the Collateral as to which perfection of a Lien is accomplished by the filing of a financing statement.
(z) subject to the provisions of clause (d) of Section 5.24, confirmation, acceptable to the Agent, of the title of the Borrowers or any of them owning any Mortgaged Properties, free and clear of Liens other than Permitted Liens, to Mortgaged Properties constituting, in the aggregate, one hundred percent (100%) of the PV-10 value, as determined by the Agent in its discretion, of the environmental & soil conditions PDP Reserves and PUD Reserves attributable to the Mortgaged Properties;
(aa) a certificate or certificates evidencing the insurance coverage required by the provisions of Section 5.19;
(bb) a payoff letter from LegacyTexas Bank, in form and substance reasonably acceptable to the Agent, setting forth, among other matters, the amount due on the Closing Date to pay in full all amounts owing by any of the property at its own expense. If said testing requires any disturbance of soilsBorrowers to LegacyTexas Bank;
(cc) release documents from LegacyTexas Bank, then the Purchaser agrees to reinstate the property to its original condition as existing prior in form and substance reasonably acceptable to the undertaking Agent, necessary to release all Liens held by LegacyTexas Bank against Property of any such soil testsof the Borrowers and securing the Indebtedness which is the subject of the payoff letter referred to in clause (bb) immediately above;
(dd) copies of all Commodity Hedge Agreements, in the event of termination of this agreement. If the agreement is terminated all environmental testing form and reports will be provided substance reasonably acceptable to the Vendor at an equal shared cost. The deposit shall secure Agent and with Approved Hedge Counterparties, establishing the obligation Minimum Required Commodity Hedge Agreements;
(ee) payment from the Borrowers or any one or more of them of estimated fees charged by filing officers and other public officials incurred or to repair be incurred in connection with the filing and recordation of any damages caused by such tests. The Purchaser indemnifies the Vendor for Security Documents and any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with release documents provided by LegacyTexas Bank and form a part for which invoices have been presented as of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------the Closing Date;
(2ff) receiving the approval opinion of the Board of Directors of its parent company, Russ ▇P▇▇▇▇▇ ▇▇▇▇▇▇ Company Inc.LLP, counsel to the Borrowers for purposes of the transactions which are the subject of this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, form and substance reasonably satisfactory to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorAgent;
(4gg) satisfying itself that the zoning opinion of J▇▇▇ ▇. ▇▇▇▇▇▇▇, A Professional Law Corporation, special counsel to the Borrowers in the State of California for purposes of the property will permit transactions which are the use subject of this Agreement, in form and substance reasonably satisfactory to the property by the Purchaser for its intended purposesAgent;
(5hh) satisfying itself that a building permit with respect certificate of a Responsible Officer of each of the Borrowers to the Purchaser's proposed construction on effect that, after giving effect to the property will be available upon compliance with normal procedures therefor.
(6) satisfying itselftransactions which are the subject of this Agreement, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments representations and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect warranties made by any of the Property and (3) whether top soil must be removed from or added to the Property Borrowers in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by any other Loan Agreement in place on the PurchaserClosing Date are true and correct, this agreement shall come to an end and in all material respects, as of the deposit and all interest earned thereon shall be returned Closing Date;
(ii) confirmation reasonably acceptable to the Purchaser without deduction, and the Purchaser Agent that no event or circumstance shall have no further obligations occurred which could reasonably be expected to have a Material Adverse Effect;
(jj) payment of estimated fees and expenses of counsel to the Vendor under this Agreement except Agent incurred through the Closing Date and for which an invoice has been presented to the Borrowers; and
(kk) such other agreements, documents, instruments, opinions, certificates, waivers, consents and evidences as aforesaidthe Agent or any Lender may reasonably request.
Appears in 1 contract
Conditions. The Purchaser's obligation under effectiveness of the provisions set forth in this Agreement is conditional for forty-five (45) business days from acceptance Agreement, including the amendments set forth in Section 4 of this agreement upon Agreement, in each case, is subject to, and conditioned upon, the Purchasersatisfaction of the following conditions precedent on the Fourth Amendment Effective Date:
(a) Borrower, each other Loan Party, Agent and the Required Lenders shall each have executed and delivered this Agreement;
(1b) satisfying itself in its sole and unfettered discretion, the Lenders shall have received evidence satisfactory to the Lenders that the Series DF-1 Certificate of Designation has been filed with the Secretary of State of the environmental & soil conditions State of Delaware and has become effective;
(c) the representations and warranties set forth in this Agreement shall be true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the property at its own expense. If said testing requires any disturbance of soilsFourth Amendment Effective Date, then the Purchaser agrees to reinstate the property to its original condition as existing prior except to the undertaking extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties shall be true, complete and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such soil tests, in the event earlier date);
(d) no Default or Event of termination of this agreement. If the agreement is terminated all environmental testing and reports will Default shall have occurred or be provided continuing (or would result after giving effect to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused transactions contemplated by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
Fourth Amendment First Out Waterfall Notes, the Warrants as amended hereby (3the “Fourth Amendment Warrants”) satisfying itself that and the property is fully servicedother Loan Documents (as amended hereby, to as applicable) and the lot lines, with all municipal services ABL Amendment and the other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged ABL Debt Documents (as local improvements, that same are sufficient for the proposed use of the property amended by the PurchaserABL Amendment, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendoras applicable));
(4e) satisfying itself that the zoning Borrower shall have executed, issued and delivered to the First Out Waterfall Lenders new First Out Waterfall Notes (each in the form of a First Out Waterfall Note attached to the Amended Facility Agreement as Exhibit A-4) (the “Fourth Amendment First Out Waterfall Notes”) in accordance with Section 1.4(c) of the property will permit the use of the property by the Purchaser for its intended purposesAmended Facility Agreement;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;
(1) satisfying itself Notwithstanding anything contained in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior this Agreement to the undertaking contrary, the Company will not be required to make the payments and provide the benefits stated in this Section 6 (other than the Accrued Compensation) unless you execute and deliver to the Company the Release of any such soil tests, Claims in the event form attached hereto as Attachment A (the “Release”). For the avoidance of termination doubt, the parties acknowledge that your right to elect COBRA coverage is not subject to your execution of this agreementa Release. If the agreement is terminated all environmental testing and reports will The Release shall be provided to you no later than two days after your termination, and must be executed by you and become effective and not be revoked by you by the Vendor at an equal shared cost55th day following your termination (the period following your termination until the Release becomes effective being the “Release Period”). The deposit Any payments or benefits in this Section 6 (other than the Accrued Compensation) that would have been paid or provided to you during the Release Period shall secure be paid or provided on the obligation to repair any damages caused by such tests. The Purchaser indemnifies next regularly scheduled Company payroll date following the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Release Period.
(2) receiving The Company will not be required to make the approval payments and provide the benefits stated in Section 6(c), (e) or (g) (other than the Accrued Compensation, the Earned Annual Incentive, the Accrued Annual Incentive and the Health Payments) unless you comply with Section 8(c) until the end of the Board “Non-Competition Period” and Section 8(d) until the end of Directors the “Non-Solicitation Period,” in each case, as stated in your Schedule. If you fail to comply with Section 8(c) until the end of its parent companyyour Non-Competition Period or Section 8(d) until the end of your Non-Solicitation Period, Russ other than any isolated, insubstantial and inadvertent failure that is not in bad faith, you will:
(A) forfeit all Performance Awards that have not vested at the time of determination (and any Performance Awards in the form of options and stock appreciation rights that have not been exercised at the time of determination (whether vested or unvested)) and all Annual Incentive Equity that have not vested at the time of determination; and
(B) pay to the Group the amount of all gain to you from the —▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Company Inc.end of your employment through the time of determination from (A) the vesting and/or exercise of any Performance Awards, to this Agreement, which approval may be withheld in and (B) the sole discretion vesting of such Board of Directorsany Annual Incentive Equity.
(3) satisfying itself that To determine the property is fully serviced, to amount you owe under Section 6(h)(2)(B):
(A) The value of the lot lines, with all municipal services and other installations required for public utilities or pursuant to Company’s common stock on any subdivision or other agreement, that same have been fully paid for and none date will be charged as local improvements, that same are sufficient calculated using the average closing price of the Company’s common stock for the proposed use 20 full trading days ending on that date.
(B) Gain on the exercise of Performance Awards in the form of options or stock appreciation rights will be based on the value of the property by Company’s common stock on the Purchaser, date of exercise.
(C) Gain on the vesting of any Performance Awards and that all municipal levies, imposts and permit fees in respect thereof have been paid by Annual Incentive Equity will be based on the Vendor;value of the Company’s common stock on the date of vesting.
(4) satisfying itself that You will pay the zoning Group under Section 6(h)(2) within 5 days of the property will permit the use of the property notice by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructionCompany, and the date of notice will be the date of determination for purposes of this Section. You will pay the Group in cash. However, you may choose to deliver Company common stock (valued in accordance with Section 6(h)(3)) in partial or full satisfaction of your obligation. Your obligations under Section 6(h)(2) are full recourse obligations. The Company will have the right to offset your obligations under Section 6(h)(2) against any amounts otherwise owed to you by any member of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the PurchaserGroup, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor including under this Agreement except as aforesaidAgreement.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement 7.1 This Amendment shall become effective and binding upon the Purchaserparties hereto upon satisfaction of the following conditions precedent as determined by Agent (the date of such effectiveness, the “Seventh Amendment Effective Date”):
a. Agent shall have received this Amendment, duly executed by ▇▇▇▇▇▇▇▇, Agent, each 2023 Extending Revolving Lender (which collectively comprise at least the Requisite Lenders (as defined in the Credit Agreement)), the 2023 New Revolving Lender and each Issuing Lender party to the Credit Agreement as of the Seventh Amendment Effective Date;
b. Agent shall have received (1A) satisfying itself in its sole and unfettered discretion, a Certificate of the environmental & soil conditions Secretary of ▇▇▇▇▇▇▇▇ (or other Responsible Official) attaching (and certifying as to) (i) a copy of the property at its own expense. If said testing requires certificate of incorporation of Borrower and any disturbance and all amendments thereof, certified as of soils, then a recent date by the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking Secretary of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out State of the testing and; 4 SCHEDULE "A" Page Two To be read with State of Delaware, (ii) a copy of the bylaws of Borrower and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. any and all amendments thereof, (Purchaseriii) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval resolutions of the Board of Directors of its parent companyBorrower (or committee thereof) approving and authorizing the execution, Russ delivery and performance of this Agreement and the other Loan Documents to which it is a party as of the Closing Date and (iv) signature and incumbency certificates of the officers of Borrower; and (B) a good standing certificate from the Secretary of State of the State of Delaware, certifying as to the good standing of Borrower;
c. Agent shall have received a favorable written legal opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Company Inc.LLP, counsel to ▇▇▇▇▇▇▇▇, as to such matters in connection with this AgreementAmendment as the Agent may reasonably request, in form and substance satisfactory to the Agent (and Borrower hereby instructs such counsel to deliver such opinion to the Agent and the Lenders);
d. The representations and warranties of Borrower contained in Section 8 of this Amendment and Article 4 of the Credit Agreement shall be true and correct in all material respects (except that any representation and warranty that is qualified by materiality shall be true and correct in all respects) on and as of the Seventh Amendment Effective Date, except to the extent that such representations and warranties expressly relate to an earlier specified date, in which approval may be withheld case such representations and warranties shall have been true and correct in the sole discretion all material respects as of such Board earlier date;
e. No Default or Event of Directors.Default shall have occurred and be continuing as of the Seventh Amendment Effective Date;
(3) satisfying itself f. Agent shall have received a Certificate of Borrower, certifying that the property is fully serviced, to the lot lines, with all municipal services conditions specified in Sections 7(d) and other installations required for public utilities or pursuant to any subdivision or other agreement, that same 7(e) of this Amendment have been fully satisfied;
g. Borrower shall have paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that (i) all municipal levies, imposts and permit upfront fees in respect thereof required to have been paid by Borrower to the Vendor;Revolving Lenders on the Seventh Amendment Effective Date as separately agreed between Borrower and the Revolving Lenders and (ii) all arranger fees required to have been paid by Borrower to the Arranger on the Seventh Amendment Effective Date as separately agreed between Borrower and the Arranger; and
(4) satisfying itself that the zoning of the property will permit the use of the property h. The Borrower shall have paid all reasonable and documented out-of-pocket expenses incurred by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, Agent and the determination Arranger in connection with this Amendment (including the reasonable and documented fees and disbursements of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidoutside counsel).
Appears in 1 contract
Sources: Credit Agreement (Viasat Inc)
Conditions. This Agreement shall become effective on the date of satisfaction of the following conditions precedent (such date, the “Incremental Effective Date”):
(a) The Purchaser's obligation under Administrative Agent shall have received (i) executed signature pages to this Agreement is conditional for forty-five (45) business days from acceptance the Parent Borrower, each other Loan Party party hereto, each Incremental Tranche A Term Lender and the Required Lenders; provided, that receipt of executed signature pages to this Agreement from the Required Lenders shall only be a condition to the effectiveness of Sections III and IV of this agreement upon Agreement, and shall not be a condition to the Purchaser;effectiveness of any other provision of this Agreement, and (ii) a Borrowing Request, duly executed by the 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 borrowing of the Incremental Tranche A Term Loans on the Incremental Effective Date.
(1b) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior The Administrative Agent shall have received a favorable written opinion (addressed to the undertaking Administrative Agent and the Lenders and dated the Incremental Effective Date) of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Company Inc., & ▇▇▇▇▇▇▇ LLP in form and substance reasonably satisfactory to this Agreement, which approval may be withheld in the sole discretion of Administrative Agent. The Parent Borrower hereby requests such Board of Directorscounsel to deliver such opinion.
(3c) satisfying itself The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Parent Borrower and the authorization of the Transactions, all in form and substance satisfactory to the Administrative Agent.
(d) 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 the chief financial officer of Holdings, certifying that Holdings and its Subsidiaries, on a consolidated basis after giving effect to the property is fully servicedTransactions, 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 lot linesextent invoiced, with reimbursement or payment of all municipal services reasonable out-of-pocket expenses (including fees, charges and other installations disbursements of one counsel in each applicable jurisdiction) required for public utilities to be reimbursed or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforany Loan Party hereunder or under any Loan Document.
(6f) satisfying itselfOn 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 sole discretionSubsidiaries 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 (1in 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 status representations and warranties of the Loan Parties set forth in the Loan Documents were true and correct in all capital levies, sewer impost fees, local improvement rates, special assessments respects and other capital (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 material respects (or in all respects if qualified by materiality); provided that to the extent any of the Specified Purchase Agreement Representations are qualified by or subject to a “material adverse effect,” “material adverse change” or similar charges against term or qualification, the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon definition thereof shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except a Material Adverse Effect (as aforesaid.defined in
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchasersatisfaction of the following conditions precedent, unless specifically waived by the Lender:
(a) The following instruments shall have been duly and validly executed and delivered to Lender by the parties thereto, all in form, scope and content satisfactory to the Lender:
(i) this Amendment executed by Borrower and Guarantors;
(1ii) satisfying itself Amended and Restated Line of Credit Promissory Note dated of even date with this Amendment in its sole the stated principal amount of $1,500,000.00 executed by Borrower and unfettered discretionpayable to the order of Lender (the “Amended and Restated Line of Credit Note”) which, in part represents a renewal of the environmental & soil conditions Existing Line of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil testsCredit Note and, in part, represents an advance of additional monies to Borrower by Lender (the event Existing Line of termination Credit Note, as amended and restated by the Amended and Restated Line of this agreement. If Credit Note is herein called the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out “Line of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Credit Note”);
(2iii) receiving First Amendment to Pledge and Security Agreement dated of even date with this Amendment executed by Borrower and each Guarantor (the approval “First Amendment to Security Agreement”); and
(iv) Resolutions of the Board of Directors (or other governing body) of its parent companyBorrower and each Guarantor certified by the Secretary or an Assistant Secretary (or other custodian of records of each such entity) which authorize the execution, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc.delivery, and performance by Borrower and each Guarantor of this Amendment and the other Loan Documents to this Agreement, which approval may be withheld executed in the sole discretion of such Board of Directorsconnection herewith.
(3b) satisfying itself that The representations and warranties contained herein, in the property is fully servicedCredit Agreement, as amended hereby, and in each other Loan Document shall be true and correct as of the date hereof, as if made on the date hereof, except to the lot lines, with all municipal services extent such representation and other installations required for public utilities or pursuant warranties relate to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforan earlier date.
(6c) satisfying itselfNo Event of Default shall have occurred and be continuing and no Default shall exist, unless such Event of Default or Default has been specifically waived in its sole discretionwriting by Lender.
(d) All corporate proceedings taken in connection with the transactions contemplated by this Amendment and all documents, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments instruments and other capital or similar charges against the Propertylegal matters incident thereto, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned satisfactory to the Purchaser without deduction, Lender and the Purchaser its legal counsel.
(e) There shall have been no further obligations to material adverse change in the Vendor under this Agreement except as aforesaidcondition (financial or otherwise) of Borrower or any Guarantor since April 20, 2011.
Appears in 1 contract
Conditions. The Purchaser's obligation under effectiveness of Section 2(a) of this Agreement is conditional for forty-five subject to the satisfaction of the following conditions precedent (45unless specifically waived in writing by the Requisite Lenders):
(a) business days from acceptance the Borrower and the Guarantors named as signatories hereto and the Requisite Lenders shall have executed and delivered to the Administrative Agent their respective counterparts of this agreement upon the PurchaserAgreement;
(1b) satisfying itself the Borrower shall have paid current principal and interest (at the rate set forth in its sole and unfettered discretion, Section 2.05 of the environmental & soil conditions of Credit Agreement) required under the property at its own expense. If said testing requires any disturbance of soilsCredit Agreement on the February 27, then the Purchaser agrees to reinstate the property to its original condition as existing 2006 payment date prior to the undertaking payment of any other amounts due on such soil testspayment date, including amounts due pursuant to Section 3 of this Agreement; provided, that the Borrower shall be permitted to make, concurrently with the payments of current principal and interest under the Credit Agreement, payments of current principal and interest on the Borrower’s Second Priority Senior Secured Floating Rate Notes Due 2011 to the holders thereof;
(c) the Borrower shall have paid to the Administrative Agent, in cash or other immediately available funds, reimbursement of all outstanding fees and expenses of the event Administrative Agent owing under Section 13.02 of termination of this agreement. If the agreement is terminated Credit Agreement as well as all environmental testing and reports will be provided other fees owing to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to Administrative Agent arising under this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.Credit Agreement or any other agreement; and
(3d) satisfying itself that the property is fully serviced, a waiver agreement (in form and substance reasonably acceptable to the lot linesAdministrative Agent) with the Holders of Notes shall have been negotiated and shall become effective concurrently with this Agreement, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreementprovided, that same have been fully paid any conditions to effectiveness or consideration made available to the Holders of Notes for such agreement shall be made available to the Administrative Agent and none will be charged the Lenders as local improvementsconditions to effectiveness of, that same are sufficient for the proposed use of the property by the Purchaseror as consideration for, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendorthis Agreement;
(4e) satisfying itself that the zoning of Amendment No. 4 Under Credit and Guarantee Agreement, dated concurrently herewith, among the property will permit Borrower, the use of Guarantors and the property by the Purchaser for its intended purposesAdministrative Agent attached as Exhibit I hereto shall become effective concurrently with this Agreement;
(5f) satisfying itself that a building permit with respect 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 substance reasonably acceptable to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6Administrative Agent) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added Indenture set forth in a Fourth Supplemental Indenture to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of Indenture shall become effective concurrently with this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidAgreement.
Appears in 1 contract
Sources: Waiver Agreement (Calpine Corp)
Conditions. The Purchaser's obligation under This Agreement shall become effective on the date in which the following conditions precedent have been satisfied or waived:
(a) this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchasershall have been executed by each Loan Party, Administrative Agent, and Required Lenders;
(1b) satisfying itself the representations and warranties in its sole this Agreement shall be true and unfettered discretion, correct in all material respects on and as of the environmental & soil conditions date of the property at its own expense. If said testing requires any disturbance of soilsthis Agreement, then the Purchaser agrees to reinstate the property to its original condition as existing prior except to the undertaking extent that (i) any of them speak to a different specific date, or (ii) the facts on which any such soil tests, in of them were based have been changed by transactions contemplated or permitted by the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Term Loan Agreement;
(2c) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., after giving effect to this Agreement, which approval may be withheld in the sole discretion no Default or Event of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorDefault shall exist;
(4d) satisfying itself that Borrower shall have provided evidence reasonably satisfactory to Administrative Agent that, simultaneously with the zoning effectiveness of this Agreement, the provisions of the property Revolving Credit Agreement will permit have been amended or waived to the use 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 property by the Purchaser for its intended purposesRevolving Credit Facility Loans to be recharacterized as non-revolving term debt;
(5e) satisfying itself 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 other employee wage and benefit payments to or for the benefit of Borrower’s or its Subsidiaries’ salaried employees and other accounts holding only Restricted Cash); provided that a building permit with respect 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 immediate Event of Default); and
(i) Administrative Agent shall have received, for the benefit of each Lender executing and delivering this Agreement to counsel to Administrative Agent by 12:00 noon (New York time) on January 16, 2008, an amendment fee equal to the Purchaser's proposed construction product of (i) the amount of such Lender’s Loan on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructioneffective date of, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaserafter giving effect to, this agreement shall come to an end and the deposit Agreement, times (ii) 0.40%, and all interest earned thereon shall be returned other fees and expenses payable to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under Administrative Agent in connection with this Agreement except as aforesaidAgreement.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five This Amendment shall become effective as of the first date (45the “Amendment Effective Date”) business days when each of the following conditions shall have been satisfied:
(a) the Administrative Agent (or its counsel) shall have received from acceptance each party hereto (including the Required TLA/RC Lenders) either (i) a counterpart of this agreement upon Amendment signed on behalf of such party or (ii) written evidence reasonably satisfactory to the PurchaserAdministrative Agent (which may include telecopy, portable document format (.pdf) or email transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment;
(b) no Default or Event of Default shall have occurred and be continuing or shall result from any extension of credit requested to be made on the Amendment Effective Date;
(c) the Administrative Agent shall have 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 by any Loan Party contained in Section 3.1 above shall be true and correct on and as of the Amendment Effective Date after giving effect to the Amendment and to any extension of credit requested to be made on the Amendment Effective Date with the same effect as though such representations and warranties had been made on and as of such date;
(d) the Administrative Agent shall have received, for the benefit of each Term A Lender and Revolving Lender that is a party hereto on the Amendment Effective Date, an amendment fee in an amount equal to 0.05% of the amount of such Term A Lender’s and Revolving Lender’s outstanding Term A Loans and outstanding Revolving Commitments on the Amendment Effective Date; and
(e) to the extent invoiced at least one (1) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing Business Day prior to the undertaking of any such soil testsAmendment Effective Date, in the event of termination of this agreement. If the agreement is terminated Administrative Agent shall have received all environmental testing fees and reports will be provided other amounts due and payable to it or its Affiliates on or prior to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25Amendment Effective Date, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully servicedincluding, to the lot linesextent invoiced, with reimbursement or payment of all municipal services of such Persons’ reasonable out‑of‑pocket expenses (including reasonable fees, charges and other installations disbursements of counsel) required for public utilities to be reimbursed or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforany Loan Party hereunder or under any other Loan Document.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchasersatisfaction of the following conditions precedent, unless specifically waived by Agent and Lenders:
(a) Agent shall have received all of the following documents, each document (unless otherwise indicated) being dated the date hereof, duly authorized, executed and delivered by the parties thereto, and in form and substance satisfactory to Agent and Lenders:
(i) this Amendment;
(1ii) satisfying itself the Third Amendment to Pledge and Security Agreement;
(iii) the Joinder Agreement with respect to OLS and Loma;
(iv) the amended and restated Notes;
(A) an opinion of the legal counsel of OLS and Loma and each other Borrower and Loan Party with respect to this Amendment, the amended and restated Notes and other such matters as Agent may require, including that the Loma Bankruptcy has been dismissed in its sole entirety, and unfettered discretion, that the Agreed Order entered by the Bankruptcy Court is now final and non-appealable; and (B) such other documents and instruments as Agent may require to evidence the addition of OLS and Loma as Borrowers under the Credit Agreement;
(vi) an incumbency certificate dated as of the environmental & soil conditions date hereof from each of OLS and Loma executed by its respective Secretary or Assistant Secretary, which shall (A) identify by name and title and bear the signature of the property at Authorized Officers and any other officers of each of OLS and Loma, authorized to sign the Loan Documents to which OLS or Loma, as applicable, is a party, (B) attach, as applicable, a copy of the by-laws or operating agreement and board of directors’ or executive committee resolutions authorizing the execution, delivery and performance of the Loan Documents to which each of OLS or Loma, respectively, is a party; and (C) attach a certified copy of its own expense. If said testing requires any disturbance articles or certificate of soilsincorporation or certificate of organization, then together with all amendments, and a certificate of good standing, each certified by the Purchaser agrees to reinstate appropriate governmental officer in its jurisdiction of incorporation;
(vii) UCC search results, evidencing the property to its original condition appropriate filing and recordation of a financing statement naming Agent, for the benefit of Lenders, as existing prior to Secured Party and each of OLS and Loma, respectively, as Debtor; and disclosing no liens or encumbrances filed against the undertaking Collateral other than those in accordance with the Credit Agreement or Permitted Liens;
(viii) certificates of any such soil tests, dissolution (or applicable equivalent) filed in the event appropriate jurisdictions in connection with the dissolution of termination each of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "(A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ C▇▇▇▇▇▇▇ ▇▇▇ Company Construction, Inc., (B) DarCom International, L.P., and (C) Newpark Shipholding Texas, L.P.;
(ix) a certified copy of the Certificate of Amendment of OGS Laboratory, Inc. evidencing its name change to this AgreementNewpark Drilling Fluids Laboratory, which approval may be withheld Inc. filed in the sole discretion of appropriate jurisdiction and the underlying requisite corporate authority approving and authorizing such Board of Directorsaction; and
(x) such additional documents, instruments and information as Agent or Lenders or their legal counsel may request.
(3b) satisfying itself that The representations and warranties contained herein, in the property is fully servicedCredit Agreement, to as amended hereby, and/or in the lot linesother Loan Documents shall be true and correct as of the date hereof as if made on the date hereof, except for such representations and warranties as by their terms expressly speak as of an earlier date; and
(c) All corporate proceedings taken in connection with the transactions contemplated by this Amendment and all municipal services documents, instruments and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon legal matters incident thereto shall be returned satisfactory to the Purchaser without deductionAgent, Lenders and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidtheir legal counsel.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement consummation of the Revolving Commitment Increase shall not become effective until the date on which each of the following conditions is conditional for forty-five satisfied or waived by the Additional Revolving Lenders (45) business days from acceptance of this agreement upon such date, the Purchaser;“Revolving Commitment Increase Effective Date”):
(1a) satisfying itself The Administrative Agent shall have received a notice of borrowing with respect to the Funded Incremental Loans to be made on the Revolving Commitment Increase Effective Date in its sole and unfettered discretion, the form of the environmental & soil conditions borrowing notice that would otherwise be required to be delivered under Section 2.2 of the property at its own expense. If said testing requires Credit Agreement; provided that the Funded Incremental Loans shall have Interest Periods as determined pursuant to Section 1(e).
(b) All reasonable out-of-pocket expenses of the Administrative Agent for which invoices have been presented (including the reasonable out-of-pocket expenses of legal counsel) that are required to be reimbursed in connection with this Amendment under Section 10.5 of the Credit Agreement shall have been paid or reimbursed, as the case may be.
(c) Each of the representations and warranties made or deemed to be made in this Amendment shall be true and correct in all material respects.
(d) Each of the conditions set forth in Section 5.2 of the Credit Agreement shall be satisfied as of the Revolving Commitment Increase Effective Date (after giving effect to any disturbance of soils, then borrowings to be made on the Purchaser agrees to reinstate the property to its original condition as existing prior Revolving Commitment Increase Effective Date).
(e) After giving pro forma effect to the undertaking borrowings to be made on the Revolving Commitment Increase Effective Date and to any change in Consolidated Adjusted EBITDA and any increase in Indebtedness resulting from the consummation of any Investment concurrently with such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out borrowings as of the testing and; 4 SCHEDULE "A" Page Two To date of the most recent financial statements delivered pursuant to Section 6.1(a) or (b) of the Credit Agreement, the Borrower shall be read in compliance with and form a part each of this Agreement the covenants set forth in Section 7.1 of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------the Credit Agreement.
(2f) receiving the approval The Administrative Agent shall have received an executed legal opinion of the Board of Directors of its parent company(i) Cravath, Russ ▇Swaine & ▇▇▇▇▇ ▇▇▇ Company Inc.LLP, special counsel to this Agreementthe Loan Parties, which approval may be withheld in (ii) Delaware counsel to the sole discretion Loan Parties and (iii) general counsel to the Loan Parties, dated as of the Revolving Commitment Increase Effective Date and covering such Board of Directorsmatters as the Administrative Agent shall reasonably request.
(3g) satisfying itself The Administrative Agent shall have received reasonably satisfactory evidence that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities Board of Directors (or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use such similar governing body) of the property by Borrower, Holdings and each other Loan Party has approved the Purchaser, execution and that all municipal levies, imposts delivery of this Amendment and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning performance of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefortransactions contemplated hereby.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Sources: Incremental Revolving Credit Facility Amendment (Crown Castle International Corp)
Conditions. This Third Amendment shall become effective and the 2019-1 Incremental Term Loan Lender shall be required to fund its 2019-1 Incremental Term Loan Commitment immediately upon the satisfaction of the following conditions (the date on which the conditions are satisfied, the “Third Amendment Effective Date”):
(a) The Purchaser's obligation under this Agreement is conditional for forty-five Administrative Agent (45or its counsel) business days from acceptance shall have received a duly executed counterpart of this agreement upon Third Amendment from the PurchaserAdministrative Agent, the 2019-1 Incremental Term Loan Lender and the Borrower;
(1b) satisfying itself The Administrative Agent shall have received (i) a Borrowing Request (or another written request, the form of which is reasonably acceptable to the Administrative Agent) in its sole and unfettered discretion, respect of the environmental & soil conditions 2019-1 Incremental Term Loans in accordance with Section 2.03 of the property Credit Agreement and (ii) a notice (in a form reasonably acceptable to the Administrative Agent) in respect of the Repayment in accordance with Section 2.11(a) of the Credit Agreement;
(c) The Borrower shall have paid (i) all reasonable and documented expenses and other compensation payable to the Administrative Agent pursuant to Section 9.03(a) of the Credit Agreement and to the extent invoiced at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing least three Business Days prior to the undertaking Third Amendment Effective Date, and (ii) to the 2019-1 Incremental Term Loan Lender any fees that have been previously agreed in writing between the 2019-1 Incremental Term Loan Lender (or any of any its affiliates) and the Borrower (which amounts may be offset against the proceeds of the 2019-1 Incremental Term Loans);
(d) The Administrative Agent shall have received (i) a certificate of the Borrower, dated the Third Amendment Effective Date, executed by a Responsible Officer thereof, which shall (A) certify that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization of the Borrower, certified by the relevant authority of its jurisdiction of organization, (x) the certificate or articles of incorporation, formation or organization of the Borrower attached thereto has not been amended (except as attached thereto) since the date reflected thereon, (y) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of the Borrower, together with all amendments thereto as of the Third Amendment Effective Date and such soil testsby-laws or operating, management, partnership or similar agreement are in full force and effect and (z) attached thereto is a true and complete copy of the event resolutions or written consent, as applicable, of termination its applicable governing body authorizing the execution and delivery of this agreement. If Amendment and the agreement Transactions, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (B) identify by name and title and bear the signatures of the officers, managers, directors or other authorized signatories of the Borrower who are authorized to sign the Loan Documents to which the Borrower is terminated all environmental testing a party on the Third Amendment Effective Date, and reports will be provided (ii) a good standing certificate for the Borrower and each Loan Guarantor from the Secretary of State of the jurisdiction in which they are organized;
(e) The Administrative Agent shall have received a certificate dated the Third Amendment Effective Date, executed by a Responsible Officer of the Borrower certifying:
(i) as to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out satisfaction of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part condition set forth in clause (g) of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Section;
(2ii) receiving the approval that each of the Board representations and warranties of Directors the Loan Parties and each Lighthouse Common Equity Holder contained in Article 3 of its parent companythe Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Third Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date or period, Russ they are true and correct in all material respects as of such date or for such period; provided, however, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates or for such periods; and
(iii) that the aggregate principal amount of the 2019-1 Incremental Term Loans incurred on the Third Amendment Effective Date does not exceed the Incremental Cap.
(f) The Administrative Agent shall have received a customary written opinion of Weil, Gotshal & ▇▇▇▇▇▇ ▇▇▇ Company Inc.LLP, special counsel for the Borrower and each other Loan Party dated the Third Amendment Effective Date and addressed to the Administrative Agent and the 2019-1 Incremental Term Loan Lender dated the Third Amendment Effective Date and addressed to the Administrative Agent, the 2019-1 Incremental Term Loan Lender and the Lenders;
(g) At the time of and immediately after giving effect to this AgreementAmendment and the incurrence of the 2019-1 Incremental Term Loans, which approval may be withheld in the sole discretion no Event of such Board of Directors.Default exists or will result therefrom; and
(3h) satisfying itself that At least three Business Days prior to the property is fully servicedThird Amendment Effective Date, if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, then, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property extent reasonably requested by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect 2019-1 Incremental Term Loan Lender at least five Business Days prior to the Purchaser's proposed construction on Third Amendment Effective Date, the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added Borrower shall deliver to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in Administrative Agent a certification regarding its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth beneficial ownership (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaida “Beneficial Ownership Certification”).
Appears in 1 contract
Sources: First Lien Credit Agreement (Shift4 Payments, Inc.)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Third Amendment and the PurchaserPurchasers’ purchase of the Third Amendment Notes is subject to the prior or concurrent consummation of each of the following conditions:
(a) Agent shall have received a copy of this Third Amendment duly executed by authorized representatives of each of the Borrowers, Agent and Purchasers;
(1b) satisfying itself in its sole and unfettered discretion, Purchasers purchasing the Third Amendment Notes shall have received the Third Amendment Notes duly executed by authorized representatives of the environmental & soil conditions Borrowers;
(c) Agent shall have received a copy of the property at its own expense. If said testing requires any disturbance of soilsAmended and Restated Credit Agreement, then the Purchaser agrees to reinstate the property to its original condition dated as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with date hereof, by and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25among the Borrowers, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇▇ ▇▇▇ Company Inc.Bank, N.A., as the agent, the Senior Lenders, and the other parties thereto in form and substance reasonably satisfactory to this Agreement, which approval may be withheld in the sole discretion of such Board of DirectorsAgent and Required Purchasers.
(3d) satisfying itself that Agent shall have received a copy of the property is fully servicedSecond Amendment to Intercreditor and Subordination Agreement, dated as of the date hereof, in form and substance reasonably satisfactory to the lot linesAgent and Required Purchasers.
(e) Agent shall have received for each Borrower, Borrower’s Operating Documents and a good standing certificate or similar certification of Borrower certified by each applicable jurisdiction of incorporation or formation, each dated as of a date no earlier than thirty (30) days prior to the Third Amendment Effective Date.
(f) Agent shall have received duly executed original signatures to the Secretary’s Certificate with all municipal services completed Borrowing Resolutions for each Borrower in form and other installations required for public utilities or pursuant substance reasonably satisfactory to any subdivision or other agreementthe Agent.
(g) Agent shall have received a legal opinion of Borrower’s counsel (including special counsel and local counsel, that same have been fully paid for as deemed necessary by Agent), in form and none will be charged substance acceptable to Required Purchasers, in their reasonable discretion, dated as local improvements, that same are sufficient for the proposed use of the property by Third Amendment Effective Date together with the Purchaserduly executed original signature thereto.
(h) Borrowers shall have delivered such other certificates, documents and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendoragreements as any Required Purchasers may reasonably request;
(4i) satisfying itself the representations and warranties in the Note Purchase Agreement shall be true, accurate, and complete in all material respects on the Third Amendment Effective Date; 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 zoning 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, and no Default or Event of Default shall have occurred and be continuing or result from purchase of the property will permit the use of the property by the Purchaser for its intended purposesThird Amendment Notes;
(5j) satisfying itself that Purchasers shall have received a building permit with respect funds flow in form and substance reasonable satisfactory to the Purchaser's proposed construction on Purchasers indicating the property will sources and uses of the proceeds of the Third Amendment Notes and the wire transfer instructions for such proceeds;
(k) Purchasers shall have received evidence reasonably satisfactory to Agent indicating that, immediately prior to and after giving pro forma effect to the purchase of the Third Amendment Notes, Borrowers shall be available upon in pro forma compliance with normal procedures therefor.the Financial Covenants set forth in Section 6.9 of the Note Purchase Agreement; and
(6l) satisfying itself, in its sole discretionBorrowers shall have paid all fees and expenses (including the Third Amendment Processing Fee and fees and expenses of counsel) to be paid to Agent or any Purchaser, as to (1) the status of all capital leviesapplicable, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies specified in respect Section 2.4 of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidNote Purchase Agreement.
Appears in 1 contract
Sources: Third Amendment Agreement (Global Telecom & Technology, Inc.)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance consummation of the transactions set forth in Sections 3 through 5 of this agreement upon Amendment Agreement shall be subject to the Purchaser;prior or simultaneous satisfaction of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from Holdings, the Borrower, each Tranche B Lender under the Restated Credit Agreement and Lenders constituting the Required Lenders (which may include certain of the aforementioned Tranche B lenders) either (1) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part counterparts of this Agreement signed on behalf of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. such party or (Purchaserii) and ------------------------------------------------------------ METRUS PROPERTIES LTD. written evidence satisfactory to the Administrative Agent (Vendorwhich may include telecopy transmission of a signed signature page of this Agreement) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------that such party has signed counterparts of this Agreement.
(2b) receiving The Administrative Agent shall have received a favorable written opinion (addressed to the approval Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders and dated the Amendment Effectiveness Date) of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Company Inc.& ▇▇▇▇▇▇▇▇▇, counsel for Holdings, the Borrower and the other Loan Parties, in form and substance satisfactory to this Agreementthe Administrative Agent covering such other matters relating to the Loan Parties, which approval may be withheld in the sole discretion Loan Documents or the Transactions as the Administrative Agent shall reasonably request. Each of Holdings and the Borrower hereby requests such Board of Directorscounsel to deliver such opinion.
(3c) satisfying itself that The Administrative Agent shall have received such documents and certificates as the property is fully servicedAdministrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Amendment Effectiveness Date and signed by the President, a Vice President or a Financial Officer of Holdings and the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of the Restated Credit Agreement and paragraph (k) of this Section.
(e) The Administrative Agent shall have received, or contemporaneously therewith shall receive, all fees and other amounts due and payable on or prior to the date hereof in connection with this Agreement and the transactions contemplated hereby, including, without limitation, to the lot linesextent invoiced, with reimbursement or payment of all municipal services out-of-pocket expenses (including, without limitation, fees, charges and other installations disbursements of counsel), required for public utilities to be reimbursed or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforany Loan Party hereunder or under any other Loan Document.
(6f) satisfying itselfThe Transactions and the other transactions contemplated hereby shall not violate any applicable law, statute, rule or regulation or conflict with, or result in a default under, any material agreement of Holdings, the Borrower or any of Holdings' Subsidiaries. All governmental and third party approvals required in connection with the issuance of the 2002 Senior Notes and the other Transactions shall have been obtained on terms satisfactory to the Administrative Agent and there shall be no governmental or judicial action, actual or threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on the Transactions.
(g) There shall not have occurred or become known to the Lenders any material adverse change in the business, financial condition, results of operations, property or prospects of Holdings and its sole discretionSubsidiaries, taken as a whole, since December 31, 2001.
(h) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, each other Loan Party and the Collateral Agent either (i) a counterpart of the Reaffirmation Agreement substantially in the form of Exhibit C hereto signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (1which may include telecopy transmission of a signed signature page of the Reaffirmation Agreement) that such party has signed a counterpart of such Reaffirmation Agreement.
(i) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, the Administrative Agent and each Assignor and Assignee party to the Master Assignment Agreement either (i) a counterpart of the Master Assignment Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of the Master Assignment Agreement) that such party has signed a counterpart of the Master Assignment Agreement.
(j) The 2002 Senior Notes shall have been issued on terms satisfactory to the Administrative Agent and in accordance with all applicable laws and on the terms and with the results consistent in all material respects with (a) the status of all capital levies, sewer impost fees, local improvement rates, special assessments prospectus heretofore made available to the Lenders and other capital or similar charges against the Property, (2b) the status of all development charges pro forma financial information and parkland dedication levies in respect projections delivered to the Administrative Agent and the Lenders prior to the date hereof
(k) The Collateral and Guarantee Requirement shall continue to be satisfied, including but not limited to providing the Collateral Agent with (i) an updated Perfection Certificate dated the Amendment Effective Date and duly executed by a Responsible Officer of the Property Borrower and (3ii) whether top soil must be removed filing new Uniform Commercial Code financing statements reflecting the name change from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.Kansas City Southern Industries Inc. to
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Kansas City Southern)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment shall be subject to ---------- fulfillment of the Purchaserfollowing conditions:
(a) The Agent shall have received on the date hereof, in form and substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Amendment;
(1ii) satisfying itself an executed consent with respect to the Existing Aviation Sales Credit Agreement (the "Citicorp Consent") in the form of Exhibit ------- A attached hereto consenting to this Amendment; -
(iii) evidence of the payment of all fees and amounts set forth in Exhibit C attached hereto; ---------
(iv) proof of insurance with respect to the property, which insurance and respective insurance carrier are acceptable to the Agent in its sole discretion;
(v) an opinion of outside counsel to the Lessee and unfettered discretionthe Guarantors, addressed to the Agent, the Owner Trustee and the Lenders and Holders, including without limitation (A) an opinion of such counsel with respect to noncontravention of the environmental & soil conditions Citicorp Loan Documents and agreements under which the Senior Subordinated Notes have been issued, by this Consent Agreement, and the instruments and documents executed by the Lessee, Construction Agent and Guarantors in connection herewith, and (b) an opinion to the effect that the execution, delivery and performance of this Consent Agreement will not affect the priority of any Lien in favor of the property at its own expense. If said testing requires Owner Trustee or the Agent (on behalf of itself, any disturbance Lender or any Holder) that exists under the Operative Agreements (which opinion may be included in the opinion referred to in clause (iv)(A) above);
(vi) a certificate of soils, then the Purchaser agrees to reinstate Secretary or an Assistant Secretary of each of the property to its original condition Lessee and each Guarantor in such form as existing prior is reasonably acceptable to the undertaking of any such soil tests, in Agent attaching and certifying as to (A) the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval resolutions of the Board of Directors of Lessee or such Guarantor (as the case may be) duly authorizing the execution, delivery and performance by Lessee or such Guarantor (as the case may be) of this Amendment and each of the other Operative Agreements delivered in connection with this Amendment to which such Lessee or Guarantor is or will be a party, (B) the fact that neither its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in certificate of incorporation nor its bylaws have been changed from the sole discretion of such Board of Directors.
(3) satisfying itself versions that the property is fully serviced, were certified and delivered to the lot lines, with all municipal services and other installations required for public utilities Agent on the Initial Closing Date (or pursuant to any subdivision or other agreement, that same if they have been fully paid for and none will be charged changed, such certificate of incorporation or by-laws certified as local improvements, that same are sufficient for of a recent date by the proposed use Secretary of State of the property by the PurchaserState of its incorporation), and that all municipal levies, imposts (C) the incumbency and permit fees signature of persons authorized to execute and deliver on its behalf this Amendment and each of the other Operative Agreements delivered in respect thereof have been paid by the Vendorconnection with this Amendment to which such Lessee or Guarantor is a party;
(4vii) satisfying itself that payment of an amendment fee, payable to the zoning Agent, in the amount of the property will permit the use of the property by the Purchaser for its intended purposes$25,000;
(5viii) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.any additional agreements, instruments or documents which it may reasonably request in connection herewith;
(6b) satisfying itself, The correctness in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect material respects of the Property representations and (3) whether top soil must be removed from or added to warranties of the Property in order to permit the Purchaser's proposed constructionOwner Trustee, Construction Agent and the determination Lessee contained herein and in each of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth Operative Agreements;
(45thc) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser No material adverse change shall have no further obligations to occurred in the Vendor under this Agreement except business, assets, management, operations, financial condition or prospects of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales since December 31, 2000;
(d) Except as aforesaiddescribed in Amendment Nos. 7-10 and amendment nos.
Appears in 1 contract
Sources: Amendment and Waiver Agreement (Timco Aviation Services Inc)
Conditions. A. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement Lease and Landlord's and Tenant's rights and obligations hereunder are conditioned upon the Purchaser;
(1) satisfying itself in its sole consent to this Lease by Stanford on terms and unfettered discretionconditions acceptable to Landlord and Tenant and execution of a nondisturbance and recognition agreement between Stanford and Tenant, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination within thirty (30) days after execution of this agreement. If the agreement is terminated all environmental testing Lease, and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇consent to this Lease by ▇▇▇▇▇ Fargo Bank and execution of a recognition, attornment, and nondisturbance agreement between ▇▇▇▇▇ Company Inc.Fargo Bank and Tenant within thirty (30) days after execution of this Lease.
B. Tenant shall have the right to terminate this Lease and Landlord's and Tenant's obligations accruing thereafter unless within one hundred twenty (120) days after the date of execution of this Lease, to this AgreementTenant shall have notified Landlord in writing that it has obtained the following approvals and permits, which or has satisfied itself that such approval may and permits will be withheld granted by the applicable governmental authority:
(i) issuance of a building permit for Tenant's construction of the Tenant Improvements described in the sole discretion of such Board of Directors.Work Letter;
(3ii) satisfying itself that the property is fully servicedapproval by all applicable local, to the lot lines, with all municipal services state and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed federal agencies of Tenant's intended use of the property by Premises, including approval of the Purchaser, use and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendorstorage of toxic materials;
(4iii) satisfying itself that issuance of use and occupancy permits by the zoning City of Palo Alto Planning, Building and Engineering Departments permitting Tenant to use the Premises for the purposes specified in Paragraph 7; and
(iv) approval by all applicable agencies of Tenant's installation and use on the Premises of the property will permit Containment Facility. If the use of the property by the Purchaser for its intended purposes;
(5conditions set forth in this Paragraph 51(B) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital are not satisified or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by Tenant within the Purchaser in its sole discretion in whole or in part by Notice to the Vendorone hundred twenty (120) day period provided, Tenant may terminate this Lease. In the event that any condition contained herein has not been fully satisfied on or before of such termination, Tenant shall promptly return to Landlord the forty fifth $500,000.00 move-in bonus paid to Tenant pursuant to Paragraph 37 and pay Landlord an amount equal to four months "effective rent" (45thdetermined by calculating the total Rent due over the initial ten year term divided by 120 months) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon $409,027.26. Tenant shall be returned to the Purchaser without deductionresponsible for obtaining such approvals. Landlord shall cooperate with Tenant by executing applications or consents or similar documents required of Landlord, and the Purchaser but Tenant shall have no further obligations to the Vendor under this Agreement except as aforesaidbe responsible for all costs of such applications.
Appears in 1 contract
Sources: Research and Development/Office Lease (Affymax Inc)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of Article 2 of this agreement upon Amendment is subject to the Purchaser;satisfaction of the following conditions precedent:
(1a) satisfying itself in The Administrative Agent (or its sole and unfettered discretion, counsel) shall have received from each party hereto either (i) a counterpart of this Amendment signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The Administrative Agent (or its counsel) shall have received from each Guarantor either (i) a counterpart of the environmental & soil conditions Amended and Restated Guaranty Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of the property at its own expense. Guaranty Agreement.
(c) If said testing requires any disturbance of soilsLender requests that any Loans made by it be evidenced by a promissory note, then the Purchaser agrees Administrative Agent (or its counsel) shall have received from each Borrower either (i) a counterpart of such promissory note signed on behalf of such party or (ii) written evidence satisfactory to reinstate the property Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of such promissory note.
(d) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowers, the authorization of the execution, delivery and performance of this Amendment and the other Loan Documents, and any other legal matters relating to the Borrowers or this Amendment and the other Loan Documents as the Administrative Agent may request, all in form and substance reasonably satisfactory to the Administrative Agent and its original condition as existing counsel.
(e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the undertaking First Amendment Effective Date, including, (a) any and all accrued fees due and owing to any Lender that will not execute this Amendment (if applicable), and (b) reimbursement or payment of all out-of-pocket expenses (including fees, charges and disbursements of counsel) incurred by the Administrative Agent in connection with this Amendment, or required to be reimbursed or paid by the Borrowers by any such soil testsengagement letter, in fee letter, this Amendment, the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair Agreement or under any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directorsother Loan Document.
(3f) satisfying itself The representations and warranties of the Borrowers set forth in this Amendment, the Agreement and the other Loan Documents shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or Material Adverse Effect, which representation and warranty shall be true and correct in all respects) on and as of the property is fully servicedFirst Amendment Effective Date, except to the lot lines, with all municipal services extent such representations and other installations required for public utilities or pursuant warranties relate specifically to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforanother date.
(6g) satisfying itselfAt the time of and immediately after giving effect to the consummation of this Amendment, the First Amendment Effective Date, and any Borrowings hereunder, no Default shall have occurred and be continuing.
(h) The Administrative Agent shall have received a certificate from the chief financial officer of the Company, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments form and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added substance reasonably acceptable to the Property in order Administrative Agent, certifying that Loan Parties, after giving effect to permit the Purchaser's proposed constructionthis Amendment, and the determination other transactions contemplated hereby, are solvent.
(i) The Administrative Agent shall have received, at least 5 days prior to the First Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(j) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the First Amendment Effective Date) of the costs thereof. Each of Borrowers’ and the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice Guarantors’ counsel covering such matters relating to the Vendor. In Borrowers, the event that any condition contained herein has not been fully satisfied on Guarantors, and this Amendment as the Administrative Agent shall reasonably request.
(k) The Administrative Agent shall have received such additional documentation and information as Administrative Agent or before its counsel may reasonably request.
(l) All proceedings taken in connection with the forty fifth (45th) business day from the acceptance of transactions contemplated by this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit Amendment and all interest earned thereon documentation and other legal matters incident thereto shall be returned satisfactory to the Purchaser without deduction, Administrative Agent and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidits counsel.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45Khanzad shall comply with each of the following conditions:
a) business days from acceptance The Khanzad shall conduct fire drills on a monthly basis, record the results of this agreement upon each fire drill, and present the Purchaserresults to BCG at the end each month; BCG shall also have the right to order additional fire drills as and when required by BCG;
(1b) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees The Khanzad shall hire a company officially certified to reinstate the property to its original condition as existing prior to the undertaking of any such soil carry out water tests, in including tests for legionella; The Khanzad shall direct the event officially certified water testing company to carry out monthly water tests and tests for legionella; the results shall be presented to BCG at the end of termination each month; BCG shall also have the right to order additional water and legionella tests as and when required by BCG;
c) The Khanzad shall hire a company officially certified to conduct lift maintenance; The Khanzad shall direct the officially certified lift maintenance company to perform maintenance on the lifts and conduct tests on the lifts on a monthly basis; the results shall be presented to BCG at the end of this agreement. If each month; BCG shall also have the agreement is terminated all environmental testing right to order additional lift maintenance and reports will be provided to tests as and when required by BCG;
d) The Khanzad shall erect fall prevention on the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with 4th and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient 5th floors for the proposed use internal atrium balcony; The Khanzad shall erect this fall prevention no later than 31st May 2014;
e) The Khanzad shall hire a company officially qualified to carry out an asbestos management survey; The Khanzad shall direct this officially qualified company to carry out the asbestos management survey; the results shall be presented to BCG no later than 31st May 2014;
f) The Khanzad shall hire a company officially qualified to carry out a seismic survey; The Khanzad shall direct this officially qualified company to carry out a seismic survey of The Khanzad; the property by results shall be presented to BCG no later than 31st May 2014;
g) The Khanzad shall refurbish the Purchaser4th and 5th floor Office space; the refurbishment shall include new carpets, new curtains, repair of walls, and that all municipal levies, imposts and permit fees in respect thereof have been paid by painting of walls; the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon refurbishment shall be returned to the Purchaser without deduction, and the Purchaser shall have completed no further obligations to the Vendor under this Agreement except as aforesaidlater than 31st May 2014.
Appears in 1 contract
Sources: Hotel Lease Agreement
Conditions. The Purchaser's obligation under This Agreement shall not be effective unless and until:
(a) this Agreement is conditional for forty-five (45executed by Borrower, Administrative Agent, and Required Lenders; provided that the amendment to the definition of “Performance Letter of Credit” and the amendment set forth in Section 1(f) business days from acceptance of above shall not be effective unless and until this agreement upon Amendment is executed by Borrower, Administrative Agent, and each Lender under the PurchaserCredit Agreement;
(1b) satisfying itself the representations and warranties in its sole this Agreement are true and unfettered discretion, correct in all material respects on and as of the environmental & soil conditions date of the property at its own expense. If said testing requires any disturbance of soilsthis Agreement, then the Purchaser agrees to reinstate the property to its original condition as existing prior except to the undertaking extent that (i) any of them speak to a different specific date, or (ii) the facts on which any such soil tests, in of them were based have been changed by transactions contemplated or permitted by the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing Credit Agreement; and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2c) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., both before and after giving effect to this Agreement, which approval may be withheld no Default or Event of Default exists;
(d) Administrative Agent shall have received a Note payable to the order of each New Lender that requests a Note, executed by Borrower in the sole discretion amount of such Board of Directors.New Lender’s respective Commitment as set forth on Schedule 2.1 attached hereto;
(3e) satisfying itself Administrative Agent shall have received a replacement Note payable to each Increasing Lender, executed by Borrower in the amount of such Increasing Lender’s respective Commitment as set forth on Schedule 2.1 attached hereto;
(f) Administrative Agent receives a certificate executed by Responsible Officer of Borrower certifying (i) the name of each of its officers who are authorized to sign this Amendment and the other documents executed in connection herewith, (ii) a true and correct copy of the Resolutions of Borrower that authorize the execution, delivery, and performance of this Amendment and the other documents executed in connection herewith, and (iii) that the property is fully servicedarticles or certificate of incorporation, to the lot linesbylaws, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreementConstituent Documents of Borrower have not been amended since July 1, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser2005, and that all municipal levies, imposts and permit fees the same are still in respect thereof have been paid by the Vendoreffect;
(4g) satisfying itself that the zoning Administrative Agent receives an opinion of the property will permit the use counsel of the property by the Purchaser for its intended purposes;Borrower in form and substance acceptable to Administrative Agent; and
(5h) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser Borrower shall have no further obligations paid Administrative Agent all fees required to be paid by Borrower under the Vendor under this Agreement except as aforesaidLoan Documents (including the Fee Letter).
Appears in 1 contract
Sources: Credit Agreement (Centex Corp)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance Our agreement contained in paragraph 2 of this agreement upon Deed shall be expressly subject to the Purchasercondition that we shall have received in form and substance as may be approved or required by us on or before the signature hereof:
(a) a certificate of an officer of each of the Borrower and the Owner confirming the names of all the directors and, in the case of the Owner, shareholders thereof;
(1b) satisfying itself in its sole and unfettered discretion, copy of the environmental & soil conditions unanimous written consent of the property at its own expense. If said testing requires any disturbance directors of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination Borrower evidencing approval of this agreement. If Deed and authorising appropriate officers or attorneys to execute the agreement is terminated all environmental testing and reports will be provided to the Vendor same;
(c) copy of resolutions passed at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out a meeting of the testing and; 4 SCHEDULE "A" Page Two To be read with board of directors and form a part the shareholders of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the Owner evidencing approval of the Board Second Mortgage Addendum and authorising appropriate officers or attorneys to execute the same;
(d) the original of Directors any power of attorney issued in favour of any person executing this Deed and the Second Mortgage Addendum on behalf of the Borrower or, as the case may be, the Owner;
(e) evidence that the Second Mortgage Addendum has been duly executed by the Owner together with evidence that the Second Mortgage Addendum has been duly registered in accordance with the laws of Liberia;
(f) evidence that the Prepayment has been effected in accordance with clauses 7.8 and 7.9(b) of the Loan Agreement;
(g) copies of all governmental and other consents, licences, approvals and authorisations as may be necessary to authorise the performance by the Borrower and the Owner of their respective obligations under this Deed or, as the case may be, the Second Mortgage Addendum and the execution, validity and enforceability of this Deed or, as the case may be, the Second Mortgage Addendum;
(h) documentary evidence that the agent for service of process named in clause 29 of the Loan Agreement has accepted its parent company, Russ appointment;
(i) favourable legal opinions from lawyers appointed by the Lender on such matters concerning the laws of ▇▇▇▇▇▇▇▇ ▇▇▇ Company Inc.Islands, to this Agreement, which approval Liberia and such other relevant jurisdictions as the Lender may be withheld in the sole discretion of such Board of Directors.require; and
(3j) satisfying itself that if the property is fully servicedLender so requires, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination any of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived documents referred to above, a certified English translation prepared by a translator approved by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidLender.
Appears in 1 contract
Conditions. The Purchaser's obligation under (a) Upon the satisfaction or waiver of each of the following conditions, this Agreement is conditional for forty-five (45other than the agreements specified in Section 2(g), the amendments specified in Section 4 and the extension specified in Section 5 which shall be effective at the times specified therein upon satisfaction of the conditions thereto as set forth in this Agreement) business days from acceptance shall be deemed to be effective (the date of such satisfaction, the “Effective Date”):
(i) the Administrative Agent shall have received counterparts of this agreement upon Agreement executed by the PurchaserAdministrative Agent, the Term Loan C Lenders and the 2016 Incremental Revolving Lenders pursuant to an authorization in the form attached hereto as Exhibit A, each, an “Authorization and Consent”), the Borrower and each of the other Credit Parties;
(ii) the Administrative Agent shall have received (A) a duly executed Incremental Term Loan Note in favor of each Term Loan C Lender (in each case, if requested by such Term Loan C Lender) and (B) a duly executed Revolving Loan Note in favor of each 2016 Incremental Revolving Lender (in each case, if requested by such 2016 Incremental Revolving Lender);
(iii) no Default or Event of Default shall exist as of the Effective Date immediately prior to or after giving effect to (A) the 2016 Incrementals, (B) the making of any extension of credit on the Effective Date pursuant to this Agreement and (C) the Schurz Acquisition;
(iv) the Borrower shall deliver or cause to be delivered a certificate in form and substance satisfactory to the Administrative Agent and executed by an Authorized Signatory of each Credit Party (including, without limitation, an incumbency certification with respect to each Authorized Signatory to this Agreement) certifying that:
(A) after giving effect to the making of the extensions of credit pursuant to the 2016 Incrementals on the Effective Date (assuming that that the Revolving Loan Commitments (including the 2016 Revolving Loan Commitment Increase) are fully funded on the Effective Date, and giving effect to the Schurz Acquisition), (1) the pro forma Leverage Ratio is less than or equal to a ratio that is at least 0.25 to 1.00 less than the then applicable Debt Incurrence Test and (2) the Credit Parties will be solvent (as determined in accordance with Section 4.1(w) of the Credit Agreement);
(B) attached thereto are:
(1) satisfying itself true, correct and correct copies of (I) the resolutions of the Borrower and each Subsidiary Guarantor authorizing the execution, delivery and performance of this Agreement, the transactions contemplated hereby and the Loan Documents (as amended hereby), (II) any amendments to articles or certificates of formation or incorporation (or the equivalent) and the bylaws or operating agreements (or the equivalent) of the Borrower and each Subsidiary Guarantor not previously delivered to the Administrative Agent (and, which in the case of any amendments to the articles or certificates of formation or incorporation (or the equivalent) shall be certified by the Secretary of State (or similar state official) for the state of incorporation, organization or formation of such Credit Party as of a date that is no earlier than 30 days prior to the Effective Date (or such earlier date as the Administrative Agent may determine in its sole discretion)), (III) the Acquisition Documents with respect to the Schurz Acquisition and unfettered discretion(IV) a certificate of good standing for each Credit Party issued by the Secretary of State (or similar state official) for the state of incorporation, organization or formation of the environmental & soil conditions such Credit Party as of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing a date that is no earlier than 30 days prior to the undertaking of any Effective Date (or such soil tests, earlier date as the Administrative Agent may determine in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------its sole discretion);
(2) receiving an updated copy of Schedule 2 to the approval Credit Agreement; and
(3) a schedule listing all Material Real Property (or confirming the absence thereof) to be acquired in the Schurz Acquisition;
(C) each of the Board representations and warranties made by it (including, without limitation, all representations and warranties with respect to the Restricted Subsidiaries) in or pursuant to the Loan Documents are true and correct in all material respects (except to the extent that such representation and warranty is subject to a materiality or Materially Adverse Effect qualifier, in which case it shall be true and correct in all respects), in each case on and as of Directors the Effective Date as if made on and as of its parent companythe Effective Date (both before and after giving effect to the 2016 Incrementals), Russ ▇except to the extent that such representations and warranties relate to an earlier date, in which case such representations and warranties are true and correct in all material respects (except to the extent that such representation and warranty is subject to a materiality or Materially Adverse Effect qualifier, in which case it shall be true and correct in all respects) as of such earlier date; and
(D) the Schurz Acquisition meets all of the requirements of a Permitted Acquisition.
(v) the Administrative Agent shall have received the following, in form and substance reasonably satisfactory to the Administrative Agent:
(A) legal opinions of (1) ▇▇▇▇▇ ▇▇▇ Company Inc.Day, corporate counsel to this Agreementthe Borrower and its Restricted Subsidiaries, which approval may be withheld in (2) FCC counsel to the sole discretion of such Board of Directors.
Borrower and its Subsidiaries and (3) satisfying itself that such other legal opinions as may be reasonably requested by the property is fully servicedAdministrative Agent (which, in each case, shall be dated as of the Effective Date, addressed to the lot lines, with all municipal services Lenders and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for the Administrative Agent and none will be charged as local improvements, that same are sufficient for the proposed use include customary reliance by successors and/or assigns of the property by the PurchaserAdministrative Agent and each Lender, including, without limitation, each Term Loan C Lender and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendoreach 2016 Incremental Revolving Lender);
(4B) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit Uniform Commercial Code Lien, judgment and other applicable searches with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Propertyeach Credit Party, (2) the status Sellers, (3) the Acquired Stations, (4) each station received in connection with each station exchange contemplated to occur simultaneously with the Schurz Acquisition (each such station exchange, an “Exchange”) as requested by the Administrative Agent;
(C) with respect to each Loan to be made on the Effective Date pursuant to a Base Rate Advance, a completed and duly executed Request for Advance substantially in the form of all development charges Exhibit D to the Credit Agreement;
(D) with respect to each Loan to be made on the Effective Date pursuant to a LIBOR Advance, a completed and parkland dedication levies duly executed Request for Advance substantially in respect the form of Exhibit D to the Credit Agreement together with a letter indemnifying the Term Loan C Lenders and/or the 2016 Incremental Revolving Lenders, as applicable, in the manner set forth in Section 2.9 of the Property Credit Agreement;
(E) evidence that (1) the Schurz Acquisition has been approved by the board of directors (or equivalent governing body) of the Seller; (2) all Necessary Authorizations relating to the execution, delivery and performance of this Agreement, the Credit Agreement (as modified and supplemented hereby) and any other documents in connection therewith and the consummation of the Schurz Acquisition and the Exchanges (including, without limitation, all asset purchases, Station Servicing Arrangements and/or option agreements, put/call agreements and agreements evidencing rights to assign any assets, in each case related to the Schurz Acquisition and the Exchanges) have been obtained or made and are in full force and effect; and (3) whether top soil must be removed from the Schurz Acquisition and the Exchanges have been, or added will be, completed contemporaneously with the funding of the Term Loan C on terms and conditions consistent with Acquisition Documents received by the Administrative Agent with respect thereto and in accordance with all Applicable Laws; and
(F) copies of insurance certificates covering the assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting the requirements of Section 5.5 of the Credit Agreement (including, without limitation, endorsements naming the Administrative Agent as lender’s loss payee and additional insured, as applicable);
(vi) The Borrower shall have paid (A) to the Property in order to permit Administrative Agent and ▇▇▇▇▇ Fargo Securities, LLC for the Purchaser's proposed constructionaccount of themselves, the other Lead Arrangers and the determination Lenders (including, without limitation, each of the costs thereof. Each Term Loan C Lenders and the 2016 Incremental Revolving Lenders), as applicable, all of the foregoing conditions is for respective fees due to them on the sole benefit Effective Date and any other accrued and unpaid fees or commissions due on the Effective Date, (B) all of the Purchaser reasonable out-of-pocket fees and expenses of the Administrative Agent, the Lead Arrangers and their respective affiliates, including without limitation, all reasonable and invoiced fees, charges and disbursements of counsel (or directly to such counsel if requested by the Administrative Agent) to the extent accrued and unpaid prior to or on the Effective Date, plus such estimate of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent) and (C) to any other Person such amount as may be waived due thereto on the Effective Date in connection with the transactions contemplated hereby, including all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of any document in connection with this Agreement;
(vii) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, business and other due diligence with respect to the business, assets, liabilities, operation and condition (financial or otherwise) of the Acquired Stations and with respect to the Schurz Acquisition and the Exchanges; and
(viii) The Borrower shall have satisfied each of the applicable conditions set forth in Sections 2.14 and 3.2 of the Credit Agreement and the definition of Permitted Acquisition in the Credit Agreement.
(b) The amendments specified in Section 4 shall be effective upon the satisfaction of each of the conditions specified in clause (a) of this Section 6 and receipt by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance Administrative Agent of counterparts of this Agreement or waived Authorizations and Consents executed by Lenders (including the Term Loan C Lenders and the 2016 Incremental Revolving Lenders) constituting Required Lenders.
(c) The extension specified in Section 5 shall be effective upon the satisfaction of each of the conditions specified in clause (a) of this Section 6 and receipt by the PurchaserAdministrative Agent of counterparts of this Agreement or Authorizations and Consents executed by each Lender with a Revolving Loan Commitment. Without limiting the generality of the provisions of Section 9.3 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this agreement shall come to Section 6, each Lender (including, without limitation, any Term Loan C Lender or 2016 Incremental Revolving Lender) that has signed this Agreement or an end Authorization and the deposit and all interest earned thereon Consent shall be returned deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidproposed Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Second Amendment and Incremental Facility Agreement (Gray Television Inc)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchasersatisfaction of the following conditions precedent or concurrent:
a. the execution and delivery of this Amendment by each Credit Party, Agent and the Required Lenders;
(1) satisfying itself in its sole and unfettered discretion, b. the consummation of the environmental & soil conditions Gundle IPO and, concurrently therewith, the repayment of all or a portion of the property at its own expense. If said testing requires any disturbance of soilsSecond Lien Indebtedness and, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking extent the Second Lien Indebtedness is repaid in full, all or a portion of any the aggregate outstanding principal balance of Revolving Loans (without a reduction of the Revolving Loan Commitment), in each case, with the cash proceeds of the Gundle IPO (such soil testsproceeds net of all fees, costs and expenses incurred in connection with the Gundle IPO, including, but not limited to, the Management Agreement Termination Fee); provided, in the event (i) the Gundle IPO is consummated but the Second Lien Indebtedness is not repaid in full and the Second Lien Indebtedness Documents and all commitments to lend thereunder are not concurrently terminated therewith, the Borrower shall have delivered to Agent a copy of termination of this agreement. If the agreement is terminated all environmental testing a duly executed and reports will be provided effective amendment to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Second Lien Credit Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., substantially conforming to this AgreementAmendment and otherwise being in form and substance reasonably satisfactory to Agent or (ii) the Gundle IPO is not consummated, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit this Amendment shall nonetheless take effect solely with respect to the Purchaser's proposed construction on amendments set forth in Sections 3(a), 3(b) and 3(d) and the property will be available amendment to the definition of “Consolidated EBITDA” set forth in Section 3(c) (such amended provisions, the “Specified Amendments”) (but not with respect to Section 2 hereof or any other amendment set forth in Section 3) upon compliance with normal procedures therefor.
such time as (6) satisfying itself, in its sole discretion, as to (1y) the status of all capital levies, sewer impost fees, local improvement rates, special assessments other conditions precedent or concurrent set forth in this Section 4 shall have been satisfied and other capital or similar charges against the Property, (2z) the status Borrower shall have delivered to Agent a copy of all development charges a duly executed and parkland dedication levies effective amendment to the Second Lien Credit Agreement substantially conforming to the Specified Amendments and otherwise being in respect form and substance reasonably satisfactory to Agent;
c. the truth and accuracy of the Property representations and (3) whether top soil must warranties contained in Section 5 hereof; and
d. no Default or Event of Default shall have occurred and be removed from continuing or added to the Property in order to permit the Purchaser's proposed construction, and the determination arise as a direct result of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance effectiveness of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidAmendment.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional Each Commitment Increase shall become effective on the proposed effective date set forth in the Borrowers’ request for forty-five a Commitment Increase or such later date as the Administrative Agent and the Borrowers agree (45the “Increase Effective Date”), which in any event shall be on or after the date on which the Administrative Agent shall have received:
(i) business days from acceptance of this agreement upon the Purchaseran Additional Lender Supplement for each Additional Lender participating in such Commitment Increase and an Increasing Lender Supplement for each Increasing Lender participating in such Commitment Increase, in each case duly executed by all parties thereto;
(1ii) satisfying itself a certificate of a Principal Financial Officer dated such date and certifying that, on a pro forma basis (assuming that such Incremental Commitments are fully drawn), WIL-Ireland shall be in its sole and unfettered discretion, compliance with each of the environmental & soil conditions Financial Covenants as of the property at its own expense. If said testing requires any disturbance of soils, then most recently ended Fiscal Quarter for which financial statements are available;
(iii) such documents and opinions consistent with those delivered on the Purchaser agrees to reinstate the property to its original condition Effective Date as existing prior to the undertaking organizational power and authority of any the Borrowers to borrow hereunder after giving effect to such soil testsCommitment Increase as the Administrative Agent may reasonably request;
(iv) such evidence of appropriate corporate or other organizational authorization on the part of the Borrowers, WIL-Ireland and the other Obligors with respect to such Commitment Increase as the Administrative Agent may reasonably request;
(v) if requested by the Administrative Agent, an opinion or opinions, in the event of termination of this agreement. If the agreement is terminated all environmental testing form and reports will be provided substance reasonably satisfactory to the Vendor at Administrative Agent, from counsel to the Borrowers and the Obligors reasonably satisfactory to the Administrative Agent, covering such matters relating to such Commitment Increase as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of WIL-Ireland, dated such Increase Effective Date, certifying that (A) the representations and warranties set forth in Article VI and in the other Loan Documents are true and correct in all material respects (except to the extent qualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct in all respects) as of, and as if such representations and warranties were made on, such Increase Effective Date (unless such representation and warranty expressly relates to an equal shared cost. The deposit earlier date, in which case such representation and warranty shall secure continue to be true and correct in all material respects (except to the obligation extent qualified by materiality or reference to repair any damages caused by Material Adverse Effect, in which case such tests. The Purchaser indemnifies the Vendor for any liability that may arise out applicable representation and warranty shall be true and correct in all respects) as of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchasersuch earlier date) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (VendorB) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------no Default or Event of Default has occurred and is continuing on such Increase Effective Date; and
(2vii) receiving other customary closing certificates and documentation (similar to the approval of documentation required to be delivered on the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully servicedEffective Date under Section 5.01, to the lot lines, with all municipal services and other installations required for public utilities or pursuant extent applicable) relating to any subdivision or other agreement, that same have been fully paid for and none will be charged such Commitment Increase as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforAdministrative Agent may reasonably request.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;
(1) satisfying itself Notwithstanding anything contained in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior this Agreement to the undertaking contrary, the Company will not be required to make the payments and provide the benefits stated in this Section 6 (other than the Accrued Compensation) unless you execute and deliver to the Company the Release of any such soil tests, Claims in the event form attached hereto as Attachment A (the “Release”). For the avoidance of termination doubt, the parties acknowledge that your right to elect COBRA coverage is not subject to your execution of this agreementa Release. If the agreement is terminated all environmental testing and reports will The Release shall be provided to you no later than two days after your termination, and must be executed by you and become effective and not be revoked by you by the Vendor at an equal shared cost55th day following your termination (the period following your termination until the Release becomes effective being the “Release Period”). The deposit Any payments or benefits in this Section 6 (other than the Accrued Compensation) that would have been paid or provided to you during the Release Period shall secure be paid or provided on the obligation to repair any damages caused by such tests. The Purchaser indemnifies next regularly scheduled Company payroll date following the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Release Period.
(2) receiving The Company will not be required to make the approval payments and provide the benefits stated in Section 6(c), (e) or (g) (other than the Accrued Compensation, the Earned Annual Incentive, the Accrued Annual Incentive and the Health Payments) unless you comply with Section 8(c) until the end of the Board “Non-Competition Period” and Section 8(d) until the end of Directors the “Non-Solicitation Period,” in each case, as stated in your Schedule. If you fail to comply with Section 8(c) until the end of its parent companyyour Non-Competition Period or Section 8(d) until the end of your Non-Solicitation Period, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc.other than any isolated, insubstantial and inadvertent failure that is not in bad faith, you will:
(A) forfeit all Performance Options (whether vested or unvested) and all Performance Stock Appreciation Rights (whether vested or unvested), in each case, that have not been exercised at the time of determination and all Annual Incentive Equity that have not vested at the time of determination; and
(B) pay to this Agreementthe Group the amount of all gain to you from the end of your employment through the time of determination from (A) the exercise of any Performance Options and Performance Stock Appreciation Rights, which approval may be withheld in and (B) the sole discretion vesting of such Board of Directorsany Annual Incentive Equity.
(3) satisfying itself that To determine the property is fully serviced, to amount you owe under Section 6(h)(2)(B):
(A) The value of the lot lines, with all municipal services and other installations required for public utilities or pursuant to Company’s common stock on any subdivision or other agreement, that same have been fully paid for and none date will be charged as local improvements, that same are sufficient calculated using the average closing price of the Company’s common stock for the proposed use 20 full trading days ending on that date.
(B) Gain on the exercise of Performance Options and Performance Stock Appreciation Rights will be based on the value of the property by Company’s common stock on the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by date of exercise.
(C) Gain on the Vendor;vesting of any Annual Incentive Equity will be based on the value of the Company’s common stock on the date of vesting.
(4) satisfying itself that You will pay the zoning Group under Section 6(h)(2) within 5 days of the property will permit the use of the property notice by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructionCompany, and the date of notice will be the date of determination for purposes of this Section. You will pay the Group in cash. However, you may choose to deliver Company common stock (valued in accordance with Section 6(h)(3)) in partial or full satisfaction of your obligation. Your obligations under Section 6(h)(2) are full recourse obligations. The Company will have the right to offset your obligations under Section 6(h)(2) against any amounts otherwise owed to you by any member of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the PurchaserGroup, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor including under this Agreement except as aforesaidAgreement.
Appears in 1 contract
Conditions. The Purchaser's obligation under (a) This Agreement will become effective on the date on which this Agreement is conditional for fortyshall have been executed and delivered by the Borrower, the other Loan Parties, the Administrative Agent and the 2017-five (45) business days from acceptance of this agreement 1 Incremental Term Loan Lenders; provided that the amendments to the Credit Agreement contemplated by Section 2 hereof shall only become effective upon the Purchasersatisfaction (or waiver by the 2017-1 Incremental Term Loan Lenders) of the conditions set forth in Section 3(b) below and the funding of the 2017-1 Incremental Term Loans.
(b) Each 2017-1 Incremental Term Loan Lender shall be required to fund its 2017-1 Incremental Term Loan Commitment when the following conditions shall have been satisfied (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 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 clauses (iv), (v) and (vi) below;
(1ii) satisfying itself in its sole all fees and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing out-of-pocket expenses for which invoices have been presented prior to the undertaking Effective Date (including the reasonable fees and expenses of any such soil tests, in legal counsel) required to be paid or reimbursed by the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided Borrower pursuant to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out Section 10.5 of the testing and; 4 SCHEDULE "A" Page Two To be read Credit Agreement or any other letter agreement in connection with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------shall have been paid or reimbursed;
(2iii) receiving the approval Administrative Agent shall have received an opinion of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Company Inc.LLP, to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, form and substance reasonably satisfactory to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorAdministrative Agent;
(4iv) satisfying itself that the zoning each of the property will permit representations and warranties made by each Loan Party contained in the use Credit Agreement and in the other Loan Documents shall be true and correct in all material respects as of the property by the Purchaser for its intended purposesEffective Date as if made on and as of such date (other than representations and warranties which speak only as of a certain date, which representations and warranties shall be made only on such date);
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1v) the status of all capital levies, sewer impost fees, local improvement rates, special assessments representations and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies warranties in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance Section 5 of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned true and correct in all material respects as of the Effective Date;
(vi) no Event of Default shall exist on the Effective Date immediately before and after giving effect to the Purchaser without deduction, and effectiveness hereof; and
(vii) the Purchaser Borrower shall have no further obligations delivered to the Vendor under this Agreement except as aforesaidAdministrative Agent a Borrowing Notice in accordance with Section 2.2 of the Credit Agreement.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement Borrower shall be permitted to sell and assign (the “Signage Sale”) all of the signage rights (the “Signage Collateral”) at the Premises during the period from the Closing Date to the date which is conditional for forty-five the third (453rd) business days from acceptance anniversary of this agreement upon the PurchaserClosing Date, provided all of the following conditions have been satisfied:
(i) no Event of Default or Default exists and is continuing at the time of the Signage Sale notice or on the date of the Signage Sale;
(1ii) satisfying itself in its sole and unfettered discretion, Agent shall have received from Borrower at least thirty (30) days prior written notice of the environmental & soil conditions of date proposed for the property at its own expense. If said testing requires any disturbance of soilsSignage Sale, which date shall be a Payment Date;
(iii) Borrower shall remit to Agent an amount (the “Signage Release Prepayment”) which is not less than $50,000,000 (“Minimum Signage Release Prepayment Amount”);
(iv) Borrower shall pay to Agent all sums then due and payable under the Purchaser agrees Notes, this Loan Agreement, the Mortgage and the other Loan Documents;
(v) Borrower shall submit to reinstate the property to its original condition as existing Agent, not less than fifteen (15) Business Days prior to the undertaking date of any such soil testsSignage Sale, a partial release of Lien (and related Loan Documents) for the Signage Collateral for execution by Agent. Such release shall be in a form appropriate in the event of termination jurisdiction in which the Signage Collateral is located and reasonably satisfactory to Agent. In addition, Borrower shall provide all other documentation Agent reasonably requires to be delivered by Borrower in connection with such release, including evidence (including such endorsement to the title policies obtained in connection with the Mortgage at the Closing as Agent may require) that such documentation (A) is in compliance with all applicable legal requirements, (B) will effect such partial release in accordance with the terms of this agreement. If Loan Agreement, and (C) will not impair or otherwise adversely affect the agreement is terminated all environmental testing Liens, security interests and reports will be provided other rights of Agent or the Lenders under the Loan Documents and (D) after giving effect to such Signage Sale, the representations set forth in Sections 5.14, 5.16, 5.18 and 5.31, are true and correct with respect the Premises not subject to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorSignage Sale;
(4vi) satisfying itself that the zoning After giving effect to such Signage Sale and application of the property will permit proceeds thereof as set forth in subsection (c) below, the use Debt Yield following any release of the property Signage Collateral shall not be less than the greater of (i) the Debt Yield immediately prior to such release, as reasonably determined by the Purchaser for its intended purposesAgent, or (ii) 11%;
(5vii) satisfying itself that a building permit After giving effect to such Signage Sale and application of the proceeds thereof as set forth in subsection (c) below, the Loan-to-Value Ratio for the Premises then remaining, based on an Appraisal or Appraisal Update dated within ninety (90) days prior the Signage Sale, shall not be greater than be the lesser of (i) the Loan-to-Value Ratio immediately prior to such Signage Sale, or (ii) 60%;
(viii) Agent shall have received from Borrower with respect to the Purchaser's proposed construction matters referred to in clauses (v) and (vi) (y) statements of the net operating income and debt service (both on a consolidated basis and separately for the applicable Signage Collateral to be released for the applicable measuring period and (z) based on the property will be available upon compliance foregoing statements of net operating income and debt service, calculations of the Debt Service Coverage Ratio, Loan to Value Ratio and Debt Yield both with normal procedures therefor.and without giving effect to the proposed Signage Sale, accompanied by an authorized officer’s certificate of Borrower that such statements, calculations and information are true, correct and complete in all material respects;
(6ix) satisfying itselfBorrower, in at its sole discretioncost and expense, as shall have delivered to Agent one or more endorsements to the Title Policy delivered to Agent on the date hereof in connection with the Mortgage insuring that, after giving effect to such Signage Sale, (1x) the status of all capital levies, sewer impost fees, local improvement rates, special assessments Lien created by the Mortgage and other capital or similar charges against insured thereby is a first priority Lien on the Property, (2) remaining Mortgaged Property subject only to the status of all development charges and parkland dedication levies in respect of Permitted Exceptions applicable to the remaining Mortgaged Property and (3y) whether top soil must be removed from or added to that the Property Title Policy is in order to permit full force and effect and unaffected by such Signage Sale;
(x) Borrower shall pay all reasonable costs and expenses of Agent in connection with the Purchaser's Signage Sale;
(xi) the proposed constructionSignage Sale shall not constitute a default under the Ground Leases, and the determination prior consent of the costs thereof. Each of Ground Lessors shall be obtained in connection with the foregoing Signage Sale; and
(xii) Borrower shall have delivered to Agent an officer’s certificate confirming the matters referred to in clause (x) above and certifying that all conditions is precedent for the sole benefit of the Purchaser and may be waived by the Purchaser such Partial Release contained in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidbeen satisfied.
Appears in 1 contract
Conditions. The Purchaser's obligation under In addition to any other conditions to Loans set out in this Agreement Agreement, PFG will not make the initial Loan hereunder until PFG shall have received, in form and substance reasonably satisfactory to PFG, such documents, and completion of 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 Obligations, PFG’s security interest in Borrower’s Collateral or the value thereof, including, without limitation:
(a) duly executed original signatures of Borrower to the Loan Documents to which Borrower is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchasera party;
(1b) satisfying itself in its sole Borrower’s respective constitutional documents and unfettered discretion, a good standing certificate of Borrower certified by the Secretary of State of the environmental & soil conditions State of the property at its own expense. If said testing requires any disturbance Delaware as of soils, then the Purchaser agrees to reinstate the property to its original condition as existing a date no earlier than thirty (30) days prior to the undertaking date hereof, together with a foreign qualification certificate from the States of any such soil tests, in California and Texas;
(c) a Secretary’s Certificate certifying the event of termination of this agreement. If the agreement is terminated all environmental testing incumbency and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out signatures of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part relevant executive officers of this Agreement Borrower, the appended Certificate of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25Incorporation of Borrower, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval appended Bylaws of Borrower, the appended resolutions of the Board of Directors of Borrower authorizing the transactions contemplated by this Agreement, the Warrant (as defined below) and the Representations;
(d) account Control Agreements as required by Section 8(b) of this Schedule, duly executed by Borrower and each relevant depositary and other institution in favor of PFG;
(e) 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 Loans, will be 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 business premises;
(h) if Borrower’s constitutional documents or stockholders agreements include a redemption right at the option of stockholders, which right would become exercisable while any Loan is outstanding, the written waiver of such right by the requisite stockholders until such time as all Obligations are indefeasibly paid and discharged.
(i) a duly executed warrant in favor of PFG and its parent companydesignees to purchase shares of Borrower’s common stock, Russ in agreed form (the “PFG Warrant”);
(j) the insurance policies and/or endorsements required pursuant to Section 5.2;
(k) payment of the Fee specified in Section 3 of this Schedule and PFG’s expenses incurred in connection with the Loan;
(l) a duly executed Compliance Certificate dated the date hereof;
(m) a pay-off agreement duly executed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Company Inc.and Borrower in favor of PFG and evidence of the substantially concurrent, to this Agreementfull and indefeasible pay-off of the Looney Note, which approval may be withheld in together with the sole discretion of such Board of Directors.discharge any and all associated liens; and
(3n) satisfying itself the Guaranty, duly executed and delivered by each Guarantor. In addition to any other conditions to Loans set out in this Agreement (including that no Default or Event of Default has occurred), PFG will not make the property is fully serviced, any Loan subsequent to the lot linesinitial loan hereunder until PFG shall have received, with all municipal services in form and other installations required substance reasonably satisfactory to PFG:
(o) a proper and timely Loan Request for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendora borrowing;
(4p) satisfying itself that the zoning evidence of the property will permit the use satisfaction of any of the property above conditions to the initial Loan the satisfaction of which (by their respective terms, above, or which by any terms of any post-closing obligations letter agreement between PFG and Borrower) PFG has permitted to be deferred to a date after the Purchaser Effective Date (except for its intended purposes;post-closing obligations not yet required to be delivered; and
(5q) satisfying itself that a building permit with respect to Compliance Certificate. [SIGNATURE PAGE FOLLOWS] Borrower: IRVINE SENSORS CORPORATION PARTNERS FOR GROWTH III, L.P. By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ President or Vice President Title: Manager, Partners for Growth III, LLC Its General Partner By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Secretary or Ass’t Secretary Section 8 - “Permitted Indebtedness”—Other Existing Permitted Indebtedness: 12% Subordinated Secured Convertible Notes due December 23, 2015 issued December 23, 2010 12% Subordinated Secured Convertible Notes due December 23, 2015 issued March 31, 2010 12% Subordinated Secured Convertible Notes due December 23, 2015 issued July 1, 2010 12% Subordinated Secured Convertible Notes due December 23, 2015 issued July 19, 2010 12% Senior Subordinated Promissory Notes due March 16, 2013 issued March 16, 2011 12% Senior Subordinated Promissory Notes due March 16, 2013 issued March 31, 2011 Capital Lease dated 5/17/11 for Equipment between the Purchaser's proposed construction on Company and Univest Capital Capital Lease dated 5.17.11 for Equipment between the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments Company and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.Western Finance & Lease
Appears in 1 contract
Sources: Loan and Security Agreement (Irvine Sensors Corp/De/)
Conditions. The Purchaser's obligation under This Agreement shall become effective as of the first date (the “Incremental Facility Closing Date”) when each of the following conditions shall have been satisfied:
(a) the Administrative Agent shall have received from each Loan Party, each Increasing Revolving Lender and the Administrative Agent (i) a counterpart of this Agreement is conditional for forty-five signed on behalf of such party or (45ii) business days from acceptance written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this agreement upon the PurchaserAgreement) that such party has signed a counterpart of this Agreement;
(1b) satisfying itself the representations and warranties set forth in its sole Section 3 above shall be true and unfettered discretion, correct as of the environmental & soil conditions date hereof;
(c) the Administrative Agent shall have received a certificate, dated the Incremental Facility Closing Date and executed by a Responsible Officer of the property at its own expense. If said testing requires any disturbance Borrowers, confirming the accuracy of soilsthe representations and warranties set forth in Section 3 above;
(d) the Administrative Agent shall have received, then on behalf of itself, and the Purchaser agrees to reinstate Increasing Revolving Lenders, a favorable written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the property to its original condition as existing prior Loan Parties, (A) dated the date hereof, (B) addressed to the undertaking of any such soil tests, Administrative Agent and the Increasing Revolving Lenders and (C) in the event of termination of this agreement. If the agreement is terminated all environmental testing form and reports will be provided substance reasonably satisfactory to the Vendor at an equal shared cost. The deposit Administrative Agent and covering such other matters relating to this Agreement as the Administrative Agent shall secure reasonably request;
(e) the obligation Administrative Agent shall have received board resolutions and other customary closing certificates and documentation consistent with those delivered on the Second Amendment Effective Date and such additional customary documents and filings as the Administrative Agent may reasonably require to repair any damages caused by such tests. The Purchaser indemnifies assure that the Vendor for any liability that may arise out Revolving Facility Loans in respect of the testing Incremental Revolving Facility Commitments contemplated hereby are secured by the Collateral ratably with the existing Term Loans and Revolving Facility Loans; and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2f) receiving the approval any fees and expenses (including reasonable fees, charges and disbursements of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇▇ Company Inc., to this Agreement, which approval may be withheld in & ▇▇▇▇▇▇▇▇ LLP) owing by the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, Borrowers to the lot lines, with all municipal services and other installations required for public utilities or pursuant Agents in connection herewith invoiced prior to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof date hereof shall have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforin full.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation Employee understands that the payment of a Separation Amount to Employee and the provision of Separation Benefits to Employee under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;are expressly conditioned and contingent on:
(1) satisfying itself in its sole and unfettered discretion, Employee’s returning to the Employer all of the environmental & soil conditions of the Employer’s property at its own expense. If said testing requires any disturbance of soilsin Employee’s possession or control [including but not limited to all tangible “confidential or proprietary information or data” as defined in Subsection 7(B), then the Purchaser agrees to reinstate the and all other property to its original condition as existing prior to the undertaking of any such soil tests, described in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Subsection 3(E)];
(2) receiving Employee’s proper completion and submission to the approval Employer of the Board any and all of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.Employee’s expense reimbursement requests;
(3) satisfying itself that the property is fully serviced, Employee’s repayment of all amounts due and owing to the lot linesEmployer (such as personal expenses, with all municipal services bills, advances and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged credit card balances as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;Separation Date); and
(4) satisfying itself Employee’s performance and observance of all of the provisions of this Agreement in accordance with their terms. Employee acknowledges that the zoning payment of a Separation Amount and provision of Separation Benefits to Employee under this Section 2 is in addition to anything that Employee is already entitled to pursuant to Employee’s employment with the Employer. Employee understands that the Separation Benefits being offered to Employee under this Section 2 are being offered subject to all applicable laws, rules and regulations, as well as all terms and conditions of any governing plan documents, as amended from time to time, that are applicable to any or all of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect Separation Benefits, including but not limited to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itselflaws, in its sole discretionrules, as regulations, terms and conditions relating to (1) the status of all capital leviesavailability, sewer impost feeseligibility, local improvement ratesparticipation, special assessments and other capital or similar charges against the Propertyadministration, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructioncost, and the determination payment, timing and amount of benefits. It is understood and agreed that the costs thereof. Each payment of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end a Separation Amount and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor provision of Separation Benefits under this Agreement except as aforesaidconstitute a voluntary, ad hoc severance arrangement, and that same shall neither create nor be evidence of any severance pay plan or employee welfare benefit plan. No employee or former employee of CFC, CFB or their affiliated entities, other than Employee, shall have any rights or claims under the above-described voluntary, ad hoc arrangement.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45a) business days from acceptance This Amendment shall be effective upon satisfaction of this agreement upon the Purchaser;following conditions precedent:
(1i) satisfying itself in its sole and unfettered discretion, This Amendment shall have been executed by each party hereto; and
(ii) The Agent shall have received a certificate from the chief financial officer of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soilsCompany certifying that (i) immediately after giving effect to this Amendment, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil testsall representations and warranties made hereunder, in the event Loan Agreement and in the other Loan Documents shall be true and correct as if made on the date hereof, (ii) the Borrowers have performed and complied with all covenants, agreements and conditions contained herein which are required to be performed or complied with by the Borrowers on or before the date hereof and (iii) no Default or Event of termination Default shall have occurred and be continuing after giving effect to this Amendment.
(b) The following shall be conditions precedent to the execution of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. Amendment:
(i) The deposit Agent shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out have received (i) copies of the testing and; 4 SCHEDULE "A" Page Two To be read with articles of incorporation or certificates of formation or other charter documents of each Borrower, (ii) copies of the bylaws or other similar agreement and form a part all amendments thereto of this Agreement each Borrower, (iii) copies of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval resolutions of the Board of Directors or similar managing body of its parent companyeach Borrower approving and adopting this Amendment, Russ ▇▇▇▇▇▇ ▇▇▇ the transactions contemplated herein and authorizing execution and delivery thereof, in each case, of each Borrower and certified by a secretary or assistant secretary of the Company Inc.to be true and correct and in force and effect as of the date hereof, to this Agreement, which approval may be withheld in (iv) a certificate of the sole discretion Secretary or Assistant Secretary (or equivalent thereof) of such Board of Directors.
(3) satisfying itself that the property is fully serviced, each Borrower certifying as to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use incumbency of the property officers of each Borrower, and (v) an original, duly certified as of a current date by the Purchaserapplicable Secretary of State, and that all municipal levies, imposts and permit fees in respect thereof have been paid of a good standing certificate issued by the VendorSecretary of the state of incorporation or organization of each Borrower;
(4ii) satisfying itself that The Borrowers shall have paid the zoning Amendment Fees and all other fees and expenses of the property will permit Agent and the use Attorney Costs incurred in connection with this Amendment and any of the property by Loan Documents and the Purchaser for its intended purposestransactions contemplated thereby to the extent invoiced;
(5iii) satisfying itself that The Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Loan Agreement;
(iv) The Agent and the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Borrowers and to make copies thereof, and to conduct a building permit pre-extension audit which shall include, without limitation, updated desktop fixed asset appraisals, verification of Inventory, Accounts, and the Borrowing Base, and the results of such examination and audit shall have been satisfactory to the Agent and the Lenders in all respects;
(v) All proceedings taken in connection with the execution of this Amendment and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent and the Lenders;
(vi) The Agent shall have received a copy of the signed order (the "Amendment Order") of the Bankruptcy Court in substantially the form of Annex II hereto authorizing and approving the transactions contemplated hereby. The Amendment Order (i) shall be in form and substance satisfactory to the Agent, (ii) shall be certified by the Clerk of the Bankruptcy Court as having been duly entered, (iii) shall have authorized extensions of credit by the Lenders in amounts up to $250,000,000, (iv) shall approve the payment by the Borrowers of all of the fees set forth in Section 3 hereof and in Section 2.5 of the Loan Agreement as amended hereby, and (v) shall be in full force and effect and shall not have been vacated, reversed, modified, amended or stayed; and
(vii) The Agent shall have received an executed tri-party agreements in form and substance satisfactory the Agent with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments lockbox accounts and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect relevant accounts of the Property and Borrowers (3) whether top soil must be removed from or added which agreements shall provide that the Agent may after the occurrence of an Event of Default, direct the applicable bank to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day transfer funds from the acceptance of this Agreement or waived by applicable accounts as the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidAgent directs).
Appears in 1 contract
Sources: Post Petition Loan and Security Agreement (W R Grace & Co)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance consummation of the transactions set forth in Sections 3 and 4 of this agreement upon Restatement Agreement shall be subject to the Purchaser;satisfaction (or waiver by the Administrative Agent and the Restatement Lenders) of the following conditions precedent:
(1a) satisfying itself in The Administrative Agent (or its sole and unfettered discretion, counsel) shall have received from each of the environmental & soil conditions Borrowers and the Restatement Lenders (which Restatement Lenders shall include Existing Lenders that constitute Existing Required Lenders) either (i) a counterpart of the property at its own expense. If said testing requires any disturbance this Restatement Agreement signed on behalf of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior such party or (ii) written evidence satisfactory to the undertaking Administrative Agent (which may include telecopy or electronic transmission of any a signed signature page of this Restatement Agreement) that such soil testsparty has signed a counterpart of this Restatement Agreement.
(b) The Administrative Agent shall have received a written opinion dated the Restatement Effective Date of (i) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ LLP, New York counsel for the Borrowers, substantially in the event form of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. Exhibit B, (Purchaserii) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ S▇▇▇▇▇▇ ▇▇▇ Company Inc.▇▇▇▇▇▇, to this AgreementNova Scotia counsel for the Borrowers, which approval may be withheld substantially in the sole discretion form of Exhibit C, (iii) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇ London LLP, English counsel for the Borrowers, substantially in the form of Exhibit D, and (iv) D▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇▇▇, Hong Kong counsel for the Borrowers, substantially in the form of Exhibit E, and in each case covering such Board of Directorsother matters relating to the Borrowers and this Restatement Agreement as the Administrative Agent shall reasonably request. The Borrowers hereby request such counsel to deliver such opinion.
(3c) satisfying itself that The Administrative Agent shall have received such documents and certificates as the property is fully servicedAdministrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrowers, the authorization by the Borrowers of the transactions contemplated hereby and any other legal matters relating to the Borrowers or the transactions contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, a Vice President, a Director or a Financial Officer of the Company, confirming the representations and warranties set forth in paragraphs (a) and (b) of Section 5 of this Restatement Agreement.
(e) The Administrative Agent shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the lot linesextent invoiced at least one Business Day prior to the Restatement Effective Date, with reimbursement or payment of all municipal services and other installations out-of-pocket expenses required for public utilities to be reimbursed or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
Borrowers under any Loan Document and (4ii) satisfying itself that all accrued and unpaid interest, commitment fees, participation fees and fronting fees under the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforExisting Revolving Credit Agreement.
(6i) satisfying itselfNo later than three Business Days prior to the Restatement Effective Date, in its sole discretion, as to (1) the status of Administrative Agent shall have received all capital levies, sewer impost fees, local improvement rates, special assessments documentation and other capital information reasonably requested by it or similar charges against any Lender at least ten Business Days prior to the PropertyRestatement Effective Date to satisfy the requirements of bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, and (2ii) to the status of all development charges extent a Borrower qualifies as a “legal entity” under the Beneficial Ownership Regulation, no later than three Business Days prior to the Restatement Effective Date, any Lender that has requested at least ten Business Days prior to the Restatement Effective Date a Beneficial Ownership Certification in relation to the Borrowers shall have received such Beneficial Ownership Certification.
(g) After giving effect to the transactions contemplated hereby, the total Commitments shall not be less than $1,000,000,000; provided that the condition set forth in this paragraph may be waived by the Company. The Administrative Agent shall notify the Company and parkland dedication levies in respect the Lenders of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructionRestatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the determination foregoing, the consummation of the costs thereof. Each transactions set forth in Sections 3 and 4 of this Restatement Agreement shall not become effective unless each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the PurchaserRestatement Lenders or, in the case of clause (g) above, the Company) at or prior to 6:00 p.m. (New York City time) on August 13, 2019 (and, in the event such conditions are not so satisfied or waived, this agreement Restatement Agreement shall come to an end terminate at such time and, for the avoidance of doubt, the Existing Revolving Credit Agreement shall remain in full force and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaideffect).
Appears in 1 contract
Sources: Amendment and Restatement Agreement (L Brands, Inc.)
Conditions. The Purchaser's obligation under It shall be a condition to the effectiveness of this Agreement is conditional for forty-five that on or before the Effective Date, Noteholder shall have approved and be in receipt of:
(45a) business days from acceptance executed and filed organizational documents of this agreement upon ▇▇▇▇▇▇▇ ▇▇ and the PurchaserREIT;
(1b) satisfying itself in its sole the final, fully-executed merger agreement by and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing between ▇▇▇▇▇▇▇ Fund and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal leviesthe final, imposts fully-executed merger agreement by and permit fees in respect thereof have been paid by between ▇▇▇▇▇▇▇ Fund V REIT and the VendorREIT;
(4c) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes[intentionally omitted];
(5d) satisfying itself confirmation that Borrower’s insurance policies (and insurance carriers) comply with any applicable requirements in the Loan Documents, including, without limitation, amounts and types of insurance, loss payee and applicable insurance certificates;
(e) a building permit with respect preliminary title report;
(f) a new title insurance policy or title insurance policy update and endorsements;
(g) property management contract between Borrower, as owner, and ▇▇▇▇▇▇▇ ▇▇, as manager, and assignment thereof to Noteholder;
(h) an opinion of counsel, satisfactory to Noteholder as to form, substance and rendering attorney, opining to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments validity and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance enforceability of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit terms and provisions hereof, and any other 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;
(i) all credit, litigation, anti-terrorism, anti-money laundering and other searches, as Noteholder may require;
(j) certification from (i) Borrower certifying, among other things reasonably requested by Noteholder, that the current financial position of Borrower has not materially and adversely changed from that reflected in 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 REIT and its consolidated subsidiaries shall not be materially and adversely different from that reflected in the pro forma financial statements most recently provided to Noteholder;
(k) Borrower shall have paid Noteholder all fees and all interest earned thereon shall be returned costs and expenses of Noteholder relative to the Purchaser without deduction, this Agreement and the Purchaser other Loan Documents and/or other documents executed pursuant hereto and any and all amendments, modifications and supplements thereto, and
(I) Borrower, the REIT and ▇▇▇▇▇▇▇ ▇▇ shall have no further obligations execute and/or deliver to the Vendor under this Agreement except Noteholder such other documents as aforesaidNoteholder shall reasonably request.
Appears in 1 contract
Sources: Consent Agreement (Rexford Industrial Realty, Inc.)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of Article 2 of this agreement upon Amendment is subject to the Purchaser;satisfaction of the following conditions precedent on or before January 22, 2002 (the "Effective Date"):
(1a) satisfying itself in its sole and unfettered discretion, The Administrative Agent shall have received: (i) a certificate as to the good standing of the environmental & soil conditions Borrower as of a recent date from such Secretary of State; (ii) a certificate of the property at its own expense. If said testing requires any disturbance Secretary or an Assistant Secretary of soils, then the Purchaser agrees to reinstate Borrower dated the property to its original condition as existing prior Effective Date and certifying (A) that the Borrower's bylaws previously certified to the undertaking of any such soil testsAdministrative Agent under the Assistant Secretary's Certificate dated July 29, 1999 remain in the event of termination of this agreement. If the agreement is terminated all environmental testing full force and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out effect on and as of the testing andEffective Date without further modifications or amendments in any respect; 4 SCHEDULE "A" Page Two To be read with (B) attached thereto is a true and form a part complete copy of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25resolutions, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of duly adopted by the Board of Directors authorizing the execution, delivery and performance of its parent companythis Amendment and that such resolutions have not been modified, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc.rescinded or amended and are in full force and effect, (C) that the Articles of Incorporation dated January 12, 2001 previously delivered to the Administrative Agent in January 2001 remain in full force and effect on and as of the Effective Date without further modifications or amendments in any respect; and (D) as to the incumbency and specimen signature of each officer executing this AgreementAgreement or any other document delivered in connection herewith on behalf of the Borrower; (iii) a certificate of another officer of the Borrower as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Lenders or the Administrative Agent, which approval may be withheld in the sole discretion of such Board of Directorsshall reasonably request.
(3b) satisfying itself that The Administrative Agent and the property is fully serviced, Lenders shall have received all fees and other amounts due and payable on or prior to the lot lines, with Effective Date.
(c) The Borrower shall have paid to the Administrative Agent all municipal services unpaid interest and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged fees owed under the Credit Agreement as local improvements, that same are sufficient for the proposed use of the property by Effective Date and each Terminating Lender shall have received the Purchaserrepayment in full of all outstanding principal, all accrued and unpaid interest and fees and all other outstanding amounts, in each case which are owed to it as of the Effective Date.
(d) All representations and warranties contained in the Credit Agreement (as amended hereby) shall be true, correct, and that complete in all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendormaterial respects except for representations specifically relating to a prior date;
(4e) satisfying itself that the zoning No Default or Event of the property will permit the use of the property by the Purchaser for its intended purposesDefault shall have occurred and be continuing;
(5f) satisfying itself that a building permit All corporate proceedings taken in connection with respect the transactions contemplated by this Amendment and all other agreements, documents, and instruments executed and/or delivered pursuant hereto, and all legal matters incident thereto, shall be satisfactory to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.Administrative Agent and its legal counsel;
(6g) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital Payment or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added reimbursement to the Property in order to permit the Purchaser's proposed constructionLenders, and the determination Agents of all outstanding expenses, fees and other costs incurred by, or due to, the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deductionLenders, and the Purchaser Agents for which such entity has presented an invoice to the Borrower prior to the Effective Date; and
(h) The Administrative Agent shall have no further obligations received such additional agreements, certificates, documents, instruments and information as the Administrative Agent or its legal counsel may request to effect the Vendor under this Agreement except as aforesaidtransactions contemplated hereby.
Appears in 1 contract
Sources: 364 Day Revolving Credit Facility Agreement (Lennox International Inc)
Conditions. The Purchaser's obligation under this Agreement of DIP Lenders to make the initial DIP Loan is conditional subject to the satisfaction of the following conditions precedent to the satisfaction of DIP Lenders in their sole discretion:
(a) All material public statements and pleadings filed by Borrower after the date of the Commitment Letter relating to the DIP Loans or the assets and business plan of Borrower or the Guarantors (but not, for forty-five (45the avoidance of doubt, the assets and business plan of the Alloy Debtors) business days from acceptance of this agreement upon the Purchasershall be in form and substance acceptable to DIP Lenders;
(1b) satisfying itself DIP Order shall have been entered by the Bankruptcy Court in its sole the Chapter 11 Case after notice and unfettered discretiona hearing conducted in accordance with the Bankruptcy Code and rules thereunder, which DIP Order approves the transactions and fees contemplated herein and under the Commitment Letter and grants superpriority administrative expense claim status and liens on the Collateral, which shall not have been modified, reversed or stayed pending appeal, in form and substance satisfactory to DIP Lenders, authorizing and approving the transactions contemplated in this DIP Credit Agreement on terms acceptable to DIP Lenders;
(c) Borrower and the Guarantors shall be in compliance in all respects with the DIP Order;
(d) DIP Lenders shall have received the Approved Budget and all other financial information, projections and reports regarding Borrower as reasonably requested by DIP Lenders, all in form and substance satisfactory to DIP Lenders, and as of the environmental & soil conditions Closing Date;
(e) Borrower and the Guarantors shall have executed and delivered, as applicable, the DIP Credit Agreement, the Notes, the Security Documents, the Guaranty Agreements, all other DIP Loan Documents (except for Deposit Account Control Agreements which shall be executed and delivered no later than 20 Business Days following the Closing Date) and such other documents and agreements as DIP Lenders shall request, each in form and substance satisfactory to DIP Lenders;
(f) DIP Lenders shall have received satisfactory evidence of the property at its own expense. If said testing requires any disturbance appropriate authorization of soilsBorrower’s Board and each Guarantor’s board of directors (or similar governing body) to execute, then deliver and perform the Purchaser agrees obligations of Borrower and each Guarantor under the DIP Loan Documents;
(g) DIP Lenders shall have received (i) satisfactory evidence that all necessary governmental, shareholder and third party approvals, consents, licenses, franchises and permits in connection with the execution, delivery and performance of this DIP Credit Agreement and the other DIP Loan Documents and the operation by Borrower and the Guarantors of their businesses shall have been obtained and remain in full force and effect; or (ii) an officer’s certificate in form and substance reasonably satisfactory to reinstate DIP Lenders affirming that no such consents or approvals are required;
(h) DIP Lenders shall have received satisfactory evidence that Borrower’s cash management system on the property Closing Date is substantially similar to its original condition as existing Borrower’s cash management system prior to the undertaking of any such soil testsClosing Date, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused except for changes approved by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorDIP Lenders;
(4i) satisfying itself that the zoning DIP Lenders shall have received a Notice of the property will permit the use of the property by the Purchaser for its intended purposesBorrowing in accordance with Section 2.01(b);
(5j) satisfying itself that a building permit with respect immediately after such Borrowing and after application of the proceeds thereof or after such issuance, the DIP Loan Outstandings shall not exceed the DIP Commitment;
(k) immediately before and after such Borrowing, no Default or Event of Default hereunder or under the DIP Order shall have occurred and be continuing;
(l) the representations and warranties of Borrower contained in the DIP Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing, except to the Purchaser's proposed construction extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date;
(m) No Material Adverse Change shall have occurred since January 10, 2018, other than the events typically resulting from the filing of Chapter 11 cases, as determined by DIP Lenders in their reasonable business judgment;
(n) Borrower shall have paid to DIP Lenders all fees and expenses then owing to DIP Lenders in connection with the Commitment Letter and the DIP Credit Agreement;
(o) The DIP Lenders shall be satisfied that they have been granted, and still continue to hold, perfected superpriority liens on all Collateral of Borrower and the Guarantors, as described in the DIP Loan Documents, on and after the Closing Date, which Collateral shall not be subject to any other liens, except existing liens acceptable to DIP Lenders;
(p) The cash balance of Borrower shall be no less than $950,000; and
(q) DIP Lenders shall have received such other documents, instruments and/or agreements as DIP Lenders may reasonably request. The obligation of DIP Lenders to make each additional DIP Loan is subject only to the satisfaction of the conditions precedent set forth in clauses (a), (c) and (i) through (o) this Article VI. Each Borrowing and each giving of a Notice of Borrowing hereunder shall be deemed to be a representation and warranty by Borrower on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, date of such borrowing or notice as to the facts specified in clauses (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Propertyj), (2) the status of all development charges and parkland dedication levies in respect of the Property k), (l), and (3m) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidabove.
Appears in 1 contract
Conditions. This Amendment shall become effective on the date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following conditions precedent shall have been satisfied in a manner satisfactory to the Bank:
(a) The Purchaser's obligation under Bank shall have received the following documents, each in form and substance satisfactory to the Bank:
(i) this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon Amendment, duly executed by the PurchaserBorrowers;
(1ii) satisfying itself the Fourth Amended and Restated Revolving A Note, dated the Amendment Effective Date, in its sole substantially the form attached hereto as ANNEX B, made by the Borrowers to the order of the Bank and unfettered discretionin 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 dividends payable on the Pledged Shares directly to the Bank without further consent from the Pledgor;
(ix) a certified copy of each Registration Rights Agreement, if any, together with any consent from Triarc that the Bank may reasonably require in order to 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 environmental law firm of Paul, Weiss, Rifkind, Wharton & soil conditions of the property at its own expense. If said testing requires any disturbance of soilsGarrison LLP, then the Purchaser agrees to reinstate the property to its original condition as existing prior counsel to the undertaking of any such soil testsBorrowers, in the event of termination of this agreement. If the agreement is terminated all environmental testing ▇▇ form and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ substanc▇ ▇▇▇▇▇nab▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, ▇▇▇factory to the lot lines, with all municipal services Bank and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendorits counsel;
(4xii) satisfying itself that the zoning of the property will permit the use of the property BA Control Agreement, duly executed by the Purchaser for its intended purposes;Securities Intermediary, the Bank and the Pledgor; and
(5xiii) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itselfsuch other agreements, in its sole discretioninstruments, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments opinions and other capital or similar charges against documents as the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and Bank may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidreasonably request.
Appears in 1 contract
Sources: Pledge and Security Agreement (Triarc Companies Inc)
Conditions. The Purchaser's CTI’s obligation under to close will be conditioned on:
A. After review of the additional due diligence information pursuant to Section V, supra, F.O.H. will confirm in writing that (i) it has had a full opportunity to ask questions, conduct due diligence and request information from CTI and its officers and directors, (ii) all inquiries and requests for information have been answered to FOH’s satisfaction, (iii) the additional confidential due diligence information provided hereunder is incorporated herein and modifies or constitutes exceptions to CTI’s representations and warranties hereunder, and (iv) it ratifies this Agreement and intends to proceed with the Closing.
B. Any approval, review or on-boarding requirement of Templum shall have been received.
C. The parties acknowledge that the Schedule of Merger Costs and some other exhibits have not been completed or annexed to this Agreement. Closing is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;
(1) satisfying itself in its sole and unfettered discretion, contingent on completion of the environmental & soil conditions Schedule of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees Merger Costs and all exhibits to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be F.O.H.’s satisfaction.
D. The parties shall have provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any contingent liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ J▇▇▇▇ ▇▇▇▇▇▇▇ arising from the Good G▇▇ ▇▇▇▇▇▇▇▇ Company Inc.of Lease dated November 11, to this Agreement2021 (the “GGG”) in respect of that certain Agreement of Lease by and between CTI and 1201 Broadway LLC, which approval may be withheld (the “Lease”) either by
(i) FOH establishing a segregated escrow account of $172,000 (the “Escrow Account”) for the purpose of covering all CTI’s remaining obligations under the Lease, with funds remaining in the sole discretion Escrow Account in excess of such Board of Directors.
(3) satisfying itself that the property is fully serviced, aggregate amount payable under the Lease returned to the lot lines, with all municipal services and other installations required for public utilities or pursuant Surviving Corporation from time to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendortime;
(4ii) satisfying itself that CTI’s notifying the zoning landlord of the property will permit “Surrender Date” under the use GGG and satisfying all relating obligations of the property by Company thereunder including vacating the Purchaser for its intended purposes;leased premises; or
(5iii) satisfying itself that a building permit FOH coming to satisfactory terms with respect the landlord to assume the Purchaser's proposed construction on Lease with termination of the property will be available upon compliance with normal procedures thereforGGG. No course of action set forth in (i), (ii) or (iii) shall in any way excuse Surviving Corporation’s obligations under the lease.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser E. The transaction shall have no further obligations to been approved by CTI’s shareholders as required by law and under CTI’s constitutive and Series A documents including such consents or waivers under the Vendor under this Agreement except SAFE instruments as aforesaidthe CTI board may deem necessary or desirable.
Appears in 1 contract
Sources: Acquisition Agreement (Collectable Sports Assets, LLC)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchaser;
(1) satisfying itself fulfillment, in its sole and unfettered discretiona manner satisfactory to the Lenders, of the environmental & soil conditions each of the property at its own expense. If said testing requires any disturbance of soils, then following conditions precedent (the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any date such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same conditions are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement fulfilled or waived by the PurchaserLenders is hereafter referred to as the "Amendment Effective Date"):
(a) The representations and warranties contained herein and in Article V of the Purchase Agreement shall be correct on and as of the Amendment Effective Date as though made on and as of such date, this agreement shall come except to the extent that such representations and warranties expressly relate solely to an end earlier date (in which case such representations and warranties shall be true and correct on and as of such date).
(b) Each of the conditions precedent to the effectiveness of the Loan Agreement Amendment shall have been satisfied or waived by the Lenders and the deposit Loan Agreement Amendment shall become effective concurrently with the effectiveness of this Amendment.
(c) The Agent and all interest earned thereon the Lenders shall be returned have executed this Amendment and received counterparts of this Amendment, which bear the signatures of the Company, the Servicer and each Originator.
(d) The Agent shall have received a fully executed Assignment and Assumption (Purchase Agreement), in form and substance satisfactory to the Purchaser without deductionLenders.
(e) Each of the Originators shall have delivered to the Original Company the Company Note held by such Originator and marked "cancelled" and the Company shall have executed a new Company Note made payable to each Originator.
(f) The Agent, the Company, the Servicer and the Originators shall have entered into the Reporting Agreement referred to in Section 2.3(g) of this Amendment.
(g) The Agent, the Company and the Servicer shall have entered into a new Servicing Agreement, in form and substance satisfactory to the Lenders.
(h) The Original Company, the Company, the Originators and the Servicer shall have entered into the Receivables Transfer Agreement, in form and substance satisfactory to the Lenders, and the Purchaser Transfers shall have no further obligations been effected in accordance therewith (the documents described in clauses (c), (d), (e), (f) and (g) above and this clause (h) are referred to herein, individually as an "Amendment Document" and collectively, as the "Amendment Documents").
(i) The Originators and the Company shall have authorized the Agent to submit for filing UCC Financing Statements naming the Originators as debtors, the Company as secured party, and the Agent as assignee of the Company.
(j) All legal matters incident to this Amendment shall be satisfactory to the Vendor under this Agreement except Agent, the Lenders and their counsel.
(k) The Agent, the Lenders and their counsel shall have received such other documents (including, but not limited to, resolutions, officer's certificates and other corporate documents) as aforesaidany such Person may reasonably request.
Appears in 1 contract
Sources: Purchase, Sale and Contribution Agreement (Foster Wheeler LTD)
Conditions. The Purchaser's obligation With respect to any Permitted Mortgage filed in accordance with the provisions of Paragraph 19.2 (Filing) hereof, the following provisions shall apply:
(a) Lessor, upon providing Lessee any notice of: (i) default under this Agreement is conditional for forty-five Lease, or (45ii) business days from acceptance of this agreement upon the Purchaser;
(1) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of a termination of this agreementLease, or (iii) a matter on which Lessor may predicate or claim a default, shall at the same time provide a true copy of such notice to every Leasehold Mortgagee. No such notice by Lessor to Lessee shall be deemed to have been duly given unless and until a copy thereof has been so provided to every Leasehold Mortgagee that has filed a notice with Lessor in accordance with Paragraph 19.2 (Filing). From and after such notice has been given to a Leasehold Mortgagee, such Leasehold Mortgagee shall have the same period after the receipt of such notice for remedying any default or acts or omissions which are the subject matter of such notice or causing the same to be remedied, as is given Lessee. If an event of default is of a nature that it can reasonably be cured, by lawful means, only by Leasehold Mortgagee obtaining actual physical possession of the Premises, or any part thereof, the period for curing the default shall be extended so long as (i) the Leasehold Mortgagee is pursing such self-help as is available under applicable law or (ii) such Leasehold Mortgagee shall be diligently attempting to obtain, in a court of competent jurisdiction, the right to actual physical possession of the Premises or any part thereof, and the Leasehold Mortgagee cures all other events of default which are susceptible of being cured by the Leasehold Mortgagee.
(b) Any Leasehold Mortgagee shall have the right, but not the obligation, to cure any default of Lessee hereunder whether the same consists of the failure to pay Rent or any other sums due and owing hereunder or the failure to perform any other matter or thing which the Lessee is hereby required to do or perform, and the Lessor shall accept such performance on the part of the Leasehold Mortgagee as though the same had been done or performed by the Lessee.
(c) Any Leasehold Mortgagee may, at the time of any damage or destruction, by fire or otherwise, to all or any portion of the Premises or any property thereon, at no cost or expense to Lessor, repair or replace the same, as the case may be.
(d) Lessor will take no action by reason of any default on the part of Lessee so long as the periods for the Leasehold Mortgagee's opportunity to cure Lessee's defaults as set forth herein have not run. In the event Lessor issues an order canceling this Lease, the order shall not become final until any foreclosure action by a Leasehold Mortgagee, registered with Lessor pursuant to Paragraph 19.2 (Filing) of this Lease, is finally resolved, if the Leasehold Mortgagee does both of the following:
(i) Within thirty (30) days of the date of issuance of a notice of default, files written notice the Lessor of its intent to proceed with a foreclosure action, and
(ii) Within one hundred twenty days (120) of the date of issuance of a notice of default, has commenced either a foreclosure action in court or a nonjudicial foreclosure of a deed of trust, and has provided Lessor with a certified copy of the complaint or other document that officially commences the foreclosure process, and thereafter prosecutes the foreclosure with reasonable diligence. Such Leasehold Mortgagee shall not be required to continue such possession or continue such foreclosure or other proceedings if the default which would have been the reason for serving such a notice shall be cured. In addition, so long as Lessor has provided notice and an opportunity to cure to Lessee and any Leasehold Mortgagee as provided herein, nothing herein shall preclude the Lessor from exercising any rights or remedies under this Lease with respect to any other default by the Lessee during any period of such forbearance. If the agreement is terminated Leasehold Mortgagee holding a Permitted Mortgage encumbering Lessee's leasehold interest or a purchaser at a foreclosure or trustee's sale (a "Purchaser") shall acquire title to Lessee's leasehold interest by foreclosure, or by assignment in lieu of foreclosure, or otherwise, and shall cure all environmental testing and reports will defaults of Lessee which are required to be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused cured by such tests. The Leasehold Mortgagee or Purchaser indemnifies pursuant hereto, as the Vendor for case may be, then such defaults of Lessee or any liability that may arise out prior holder of the testing and; 4 SCHEDULE "A" Page Two To Lessee's leasehold interests which are not required to be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. cured by such Leasehold Mortgagee (or Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., shall no longer be deemed to this Agreement, which approval may be withheld in the sole discretion of such Board of Directorsdefaults hereunder.
(3e) satisfying itself that Any Leasehold Mortgagee or Purchaser of the property is fully servicedLessee's or, if applicable, any sublessee's leasehold interest (or any portion thereof) may become the legal owner and holder of all or a portion of this Lease or such sublease by judicial or non-judicial foreclosure of a Permitted Mortgage or as a result of the assignment of this Lease or such sublease in lieu of foreclosure without Lessor's consent, whereupon such Leasehold Mortgagee or Purchaser at a foreclosure sale shall immediately become and remain liable under this Lease (or such sublease) to the lot linessame extent as Lessee (or such sublessee), with and any and all municipal services benefits that would thereafter accrue to Lessee (or such sublessee) under this Lease (or such sublease) shall belong to such Leasehold Mortgagee or Purchaser. In case any such Leasehold Mortgagee or Purchaser by foreclosure of Lessee's interest becomes the owner and other installations required for public utilities or pursuant to holder of this Lease, any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property same events described in Paragraph 17.1 (Events) by the Purchasersuch Leasehold Mortgagee or Purchaser shall constitute a default, and that all municipal leviesLessor shall be entitled to the same remedies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit but only with respect to that part or portion of the Premises held under this Lease by such Leasehold Mortgagee or Purchaser's proposed construction on . Nothing contained herein shall be construed or interpreted to preclude Lessor from exercising any of its rights and remedies hereunder if Leasehold Mortgagee or Purchaser, within the property will be available upon compliance with normal procedures thereforperiods provided herein, fails to cure any event of default occurring after the Leasehold Mortgagee or Purchaser acquires its interest herein.
(6f) satisfying itselfIf such Leasehold Mortgagee or Purchaser is a trustee, each and every obligation of such trustee shall be binding upon it solely in its fiduciary capacity and shall have no force and effect against such trustee in its individual capacity.
(g) Lessor shall upon request of a Leasehold Mortgagee execute, acknowledge and deliver to such Leasehold Mortgagee, an agreement prepared at the sole cost and expense (excluding, however, the cost of any attorneys' fees incurred by Lessor) of Lessee, the Leasehold Mortgagee or the sublessee if the Permitted Mortgage is on any sublessee's interest, in its sole discretionform satisfactory to such Leasehold Mortgagee between Lessor, as Lessee (or sublessee), and Leasehold Mortgagee, agreeing to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and provisions of this Section.
(3h) whether top soil must Lessor agrees that the name of any Leasehold Mortgagee may be removed from added as an additional insured or added to the Property "loss payable endorsement" or named under a standard mortgagee clause of any and all insurance policies carried by Lessee (or sublessee, if applicable). The proceeds arising from any insurance policies are to be held by a bank or trust company chosen by such Leasehold Mortgagee which is authorized to do business in order Arizona and has a net worth of $10,000,000.00 or more (the "Depository"), and distributed pursuant to permit the Purchaserprovisions of this Lease, or, subject to Lessor's proposed constructionprior approval, by the Leasehold Mortgagee whose Permitted Mortgage encumbers Lessee's interest and is prior in lien to any other Leasehold Mortgagee, but the Leasehold Mortgagee may reserve its right to apply to the mortgage debt all, or any part, of Lessee's share of such proceeds pursuant to the Permitted Mortgage.
(i) Any Leasehold Mortgagee shall be given prompt notice by Lessor of any arbitration proceedings or legal proceedings by the parties hereto involving obligations under this Lease, and shall have the right to intervene therein and be made a party to such proceedings, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice parties hereto do hereby consent to the Vendorsuch intervention. In the event that any condition Leasehold Mortgagee shall not elect to intervene or become a party to such proceedings, the Leasehold Mortgagee shall receive notice of, and a copy of, any award or decision made in said arbitration proceedings which shall be binding on all Leasehold Mortgagees not intervening after receipt of notice of arbitration.
(j) As to any Permitted Mortgage of Lessee's leasehold interest, Lessor consents to a provision therein for an assignment of rents due from sublessee to the holder thereof, effective upon any default under such Permitted Mortgage, subject to Lessee's or Lessor's right to collect such rents. The holder thereof in any action to foreclose the same shall be entitled to the appointment of a receiver.
(k) Nothing herein contained herein has shall be deemed to impose any obligation on the part of Lessor to deliver physical possession of the Premises to any Leasehold Mortgagee, or to its nominee. Lessor agrees, however, that Lessor will, at the sole cost and expense of such Leasehold Mortgagee, or its nominee, cooperate in the prosecution of summary proceedings to evict the then defaulting Lessee (or sublessee, if applicable).
(l) Lessee may delegate irrevocably to any Leasehold Mortgagee holding a Permitted Mortgage encumbering Lessee's leasehold interest the authority to exercise any or all of Lessee's rights hereunder, but no such delegation shall be binding upon Lessor unless and until either Lessee or said Leasehold Mortgagee gives to Lessor a true copy of a written instrument effecting such delegation. Such delegation of authority may be effected by the terms of the Permitted Mortgage itself, in which case the service upon Lessor of a true copy of the Permitted Mortgage in accordance with this Article 19 (Mortgages), together with a written notice specifying the provision therein which delegates such authority to said Leasehold Mortgagee, shall be sufficient to give Lessor notice of such delegation. The rights set forth in this paragraph shall not been fully satisfied on affect, modify, or before limit the forty fifth rights of the Leasehold Mortgagee contained in this Lease or Lessee's duties and obligations hereunder.
(45thm) business day from No payment made to Lessor by a Leasehold Mortgagee shall constitute an agreement that such payment is, in fact, due under the acceptance terms of this Agreement Lease. A Leasehold Mortgagee having made any payment to Lessor pursuant to Lessor's wrongful, improper, or waived mistaken demand shall be entitled to the return of any such payment or a portion thereof provided such Leasehold Mortgagee shall have made demand therefor not later than one year after the date of its payment.
(n) Lessor shall, without charge, at any time and from time to time hereafter, within ten (10) days after written request of Lessee, any sublessee, or Leasehold Mortgagee to do so, certify by the written instrument duly executed and acknowledged to any Leasehold Mortgagee or sublessee, Purchaser, assignee of any right, title or interest of Lessee in this agreement shall come Lease or proposed Leasehold Mortgagee sublessee, Purchaser, or assignee of any right, title or interest of Lessee in this Lease or any other person, firm, or corporation specified in such request:
(i) as to an end whether this Lease has been supplemented or amended, and if so, the deposit substance and all interest earned thereon shall be returned manner of such supplement or amendment; (ii) as to the Purchaser without deduction, and the Purchaser shall have no further obligations existence of any default hereunder to the Vendor under best of Lessor's knowledge; (iii) as to the Commencement Date and Expiration Date of the Lease Term; (iv) acknowledging that the lienholder is a Leasehold Mortgagee; (v) as to whether the Lessor has assigned its interests or any portion thereof in this Agreement except Lease and, to the best of its knowledge, as aforesaid.to whether the Lessee has assigned it interests or any portion thereof in the Lease; (vi) certifying that, to the best of Lessor's knowledge, there has been no violation of any law, ordinance or governmental rule or regulation relating to the Premises;
Appears in 1 contract
Sources: Commercial Lease (Nexthealth Inc)
Conditions. This Amendment shall become effective only upon ---------- satisfaction in full of the following conditions precedent (the first date upon which all such conditions have been satisfied being herein called the "Second Amendment Effective Date"):
(a) The Purchaser's obligation under representations and warranties contained in this Amendment and in Article VI of the Financing Agreement is conditional for forty-five and each other Loan Document shall be correct on and as of the Second Amendment Effective Date as though made on and as of such date (45except where such representations and warranties relate to an earlier date in which case such representations and warranties shall be true and correct as of such earlier date); no Event of Default or Potential Default shall have occurred and be continuing on the Second Amendment Effective Date or result from this Amendment becoming effective in accordance with its terms.
(b) business days from acceptance The Agent shall have received counterparts of this agreement upon Amendment, duly executed by the Purchaser;Borrowers, the Guarantors and the Lenders.
(1c) satisfying itself in its sole and unfettered discretionThe Agent shall have received the New Notes (the New Notes together with this Amendment, the "Amendment Documents"), duly executed by each of the environmental & soil conditions Borrowers.
(d) The Borrowers shall pay to the Agent for the account of the property at its own expense. If said testing requires any disturbance Lenders in accordance with the Lenders' respective Pro Rata Shares (or the Agent may charge the Loan Account pursuant to Section 4.02) a non-refundable amendment fee of soils$125,000, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil testswhich fee is earned, in full, on the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. date hereof.
(e) The deposit Agent shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out have received a copy of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of resolutions adopted by the Board of Directors or other governing body of its parent companyeach of the Borrowers and the Corporate Guarantors, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc.certified as of the Second Amendment Effective Date by authorized officers thereof, authorizing (A) the transactions contemplated by the Amendment Documents, and the Financing Agreement as amended hereby, and (B) the execution, delivery and performance by each of the Borrowers and the Corporate Guarantors of the Amendment Documents to this Agreement, which approval may be withheld in the sole discretion of such Board of Directorsit is a party.
(3f) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same The Agent shall have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use received a certificate of authorized officers of the property by Borrowers and Corporate Guarantors certifying the Purchaser, names and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning true signatures of the property will permit the use officers of the property by Borrowers and the Purchaser for its intended purposes;
(5) satisfying itself that a building permit Corporate Guarantors authorized to sign the Amendment Documents, together with respect to evidence of the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforincumbency of such authorized officers.
(6g) satisfying itself, in its sole discretion, The Agent shall have received a certificate of the chief executive officer or the chief financial officer of each of the Borrowers and Corporate Guarantors certifying as to the matters set forth in subsection (1a) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, this Section 13.
(2h) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must All legal matters incident to this Amendment shall be removed from or added satisfactory to the Property in order to permit the Purchaser's proposed construction, Agent and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidcounsel.
Appears in 1 contract
Sources: Financing Agreement (Happy Kids Inc)
Conditions. The Purchaser's obligation under of the Payment Rights Purchaser to proceed to the Closing is subject to the satisfaction, or waiver in writing, as of the Closing Date of the conditions set forth in this Section.
(a) The Payment Rights Purchaser shall have approved the form of the Installment Agreement; provided that, if the approved Installment Agreement is conditional for forty-five executed prior to the Closing, then, on the Closing Date, the Installment Agreement shall be: (45i) business days reasonably satisfactory to the Payment Rights Purchaser; and (ii) in full force and effect.
(b) The Payment Rights Purchaser shall have received executed copies of all the Assignment Documents, in form and substance reasonably acceptable to Payment Rights Purchaser.
(c) No general banking moratorium shall have been declared by authorities of the United States of America or the State of Indiana.
(d) The Payment Rights Purchaser shall have received a Tax Opinion, dated the Closing Date, which opinion shall be: (i) addressed to the Payment Rights Purchaser, or accompanied by a letter from acceptance Special Tax Counsel that is addressed to the Payment Rights Purchaser and specifies that the Payment Rights Purchaser may rely on such opinion; and (ii) in form and substance acceptable to the Payment Rights Purchaser.
(e) The Payment Rights Purchaser shall have received an opinion from
(f) The Payment Rights Purchaser shall have received an opinion from counsel to City, which opinion shall be: (i) dated the Closing Date; (ii) addressed to Special Tax Counsel, the City, and the Payment Rights Purchaser; and (iii) in a form and substance acceptable to the Payment Rights Purchaser.
(g) The Payment Rights Purchaser shall have received from City certified copies of this agreement upon the resolutions, minutes, and/or approvals enacted and/or obtained by City authorizing the execution and delivery of all documents to be executed and delivered by City in connection with the Transaction, which certification shall state that such resolutions and/or approvals remain in full force and effect without amendment.
(h) The Payment Rights Purchaser shall have received from Developer:
(i) certified copies of the resolutions and/or approvals enacted and/or obtained by Developer authorizing the execution and delivery of all documents to be executed and delivered by Developer in connection with the Transaction, which certification shall state that such resolutions and/or approvals remain in full force and effect without amendment;
(ii) copies of the Articles of Organization, Operating Agreement, and Certificate of Existence of Developer;
(iii) a copy of the fully executed Developer Mortgage together with evidence of recording thereof;
(iv) a title insurance policy insuring the lien of the Developer Mortgage in form and substance acceptable to Payment Rights Purchaser;
(1v) satisfying itself in its sole and unfettered discretion, an ALTA Survey of the Project Site in form and substance acceptable to Payment Rights Purchaser; and
(vi) a phase one environmental & soil conditions survey of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees Project Site in form and substance acceptable to reinstate the property to its original condition as existing prior to the undertaking of any such soil testsPayment Rights Purchaser.
(i) The Payment Rights Purchaser, in the event exercise of termination its reasonable discretion, shall be satisfied that, at the Closing, all of this agreement. If its expenses in connection with the agreement is terminated all environmental testing Transaction (including, without limitation, processing, closing, and reports reasonable attorneys' fees) will be provided to paid by Developer and/or the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of DirectorsCity.
(3j) satisfying itself that The Payment Rights Purchaser shall have received such additional documentation as counsel for the property is fully serviced, Payment Rights Purchaser or the Special Tax Counsel reasonably may request to: (i) evidence compliance with all Laws; or (ii) provide further assurances to the lot lines, with all municipal services Payment Rights Purchaser; which documentation shall be in form and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect substance reasonably acceptable to the Payment Rights Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each If any of the foregoing conditions is for are not satisfied, or waived in writing, on the sole benefit of Closing Date, then the Payment Rights Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of terminate this Agreement or waived by the Purchaser, this agreement shall come delivery of written notice to an end Developer and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidCity.
Appears in 1 contract
Sources: Participation and Purchase Agreement
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchaser;satisfaction or waiver of the following conditions precedent (the date of satisfaction of all such conditions precedent shall be referred to herein as the “Second Amendment Effective Date”):
(1a) satisfying itself in its sole the execution and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination delivery of this agreement. If Amendment by the agreement is terminated all environmental testing Loan Parties and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ L▇▇▇▇▇▇ ;
(b) Lender shall have received the Second Supplemental Term Loan Promissory Note duly executed by the Borrowers;
(c) L▇▇▇▇▇ Company Inc.shall have received the Second Amendment to Guaranty and Security Agreement duly executed by the Loan Parties;
(d) L▇▇▇▇▇ shall have received a certificate of the secretary (or other equivalent officer, to this Agreementpartner or manager) of each Borrower, dated as of the Second Amendment Effective Date, which approval may be withheld shall certify (i) copies of resolutions in form and substance satisfactory to Lender of the sole discretion board of directors (or other equivalent governing body, member, manager or partner) of such Board Borrower authorizing the execution, delivery and performance of Directorsthis Amendment and each other Loan Document executed by such Borrower in connection herewith, (ii) the incumbency and signature of the officers of such Borrower authorized to execute this Amendment and each other Loan Document executed by such Borrower in connection herewith, (iii) copies of the Organizational Documents of such Borrower as in effect on such date, complete with all amendments thereto (or a certification from such Borrower that the Organizational Documents of such Borrower attached to the officer certificate of such borrower, dated as of the First Amendment Effective Date and delivered to Lender by such Borrower, are in full force and effect on the date hereof and have not been amended, modified, terminated or rescinded in any respect), and (iv) the good standing (or equivalent status) of such Borrower in its jurisdiction of organization as evidenced by good standing certificate(s) (or the equivalent thereof issued by any applicable jurisdiction) dated not more than thirty (30) days prior to the Second Amendment Effective Date, issued by the Secretary of State or other appropriate official of each such jurisdiction.
(3e) satisfying itself that Lender shall have received a legal opinion of Borrowers’ counsel as L▇▇▇▇▇ shall reasonably request in connection with the property is fully servicedtransactions contemplated by this Amendment, in form and substance reasonably satisfactory to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorLender;
(4f) satisfying itself that the zoning Lender shall have received satisfactory results of the property will permit the use of the property by the Purchaser for its intended purposeslien, good standing and other searches as Lender may require;
(5g) satisfying itself that no Default or Event of Default currently exists or would immediately result after giving effect to this Amendment;
(h) Lender shall have received a building permit Notice of Borrowing with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.Second Supplemental Term Loan;
(6i) satisfying itselfthe representations and warranties in Section 4 hereof being true, correct and complete in all material respects (without duplication of any materiality qualifier in such representations or warranties), except to the extent that any such representation or warranty relates to a specific earlier date, in its sole discretion, which case such representation and warranty shall be true and correct in all material respects as to of such earlier date (1without duplication of any materiality qualifier in such representations or warranties);
(j) Lender shall have received such other documents or financial statements as Lender may reasonably request; and
(k) the status of Borrowers shall have paid to Lender all capital levies, sewer impost fees, local improvement rates, special assessments fees and other capital or similar charges against expenses for the Property, Administrative Borrower (2) the status of all development charges and parkland dedication levies if provided an invoice at least one Business Day in respect advance of the Property and (3date hereof) whether top soil must be removed from or added owing to the Property Lender in order to permit the Purchaser's proposed construction, connection with this Amendment and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidtransactions contemplated herein.
Appears in 1 contract
Sources: Credit Agreement (American Shared Hospital Services)
Conditions. The Purchaser's obligation under Section 3.1. Conditions to Effectiveness of this Agreement is conditional for forty-five (45) business days from acceptance and to the initial Extensions of Credit on the Effective Date. The effectiveness of this agreement upon Agreement and the Purchaserobligation of each Lender to make any Extension of Credit on the Effective Date or for the Agent or any Lender to take, fulfill or perform any other action hereunder, shall be subject to satisfaction of all of the following conditions in a manner satisfactory to Agent:
(a) This Agreement or counterparts hereof, the Notes and the other Loan Documents shall have been duly executed by the Borrowers and the other Credit Parties party thereto, and delivered to the Agent and Lenders; and Agent shall have received such documents, instruments, agreements and legal opinions as Agent shall reasonably request in connection with the transactions contemplated by this Agreement, including an opinion of counsel to the Credit Parties substantially in the form of Exhibit I and the other documents, instruments, agreements and opinions listed in the Closing Checklist attached hereto as Exhibit K, each in form and substance reasonably satisfactory to the Agent. The Agent shall have received and approved revised Schedules to this Agreement and, if appropriate, the other Credit Documents, dated as of the Effective Date;
(1b) satisfying itself The Interim Order shall have been entered or approved by the Bankruptcy Court in form and substance acceptable to the Borrowers, the Agent and the Lenders;
(c) Agent shall have received (i) evidence satisfactory to it in its sole discretion that the Credit Parties have obtained all required consents and unfettered discretionapprovals, including regulatory and other third party approvals, of all Persons including all requisite Governmental Authorities, to the environmental & soil conditions execution, delivery and performance of this Agreement and the other Loan Documents and the continuing operations of the property at Credit Parties, and the same shall be in full force and effect or (ii) an Officer’s Certificate in form and substance satisfactory to Agent affirming that no such consents or approvals are required;
(d) Agent shall have received the Fees required to be paid by the Borrowers on the Effective Date in the respective amounts specified in Section 2.7 or in the Commitment Letter and shall have reimbursed the Agent for all fees, costs and expenses of closing presented as of the Effective Date;
(e) The corporate structure, capital structure, other debt instruments, material contracts of CCS, and governing documents of the Credit Parties and their Subsidiaries shall be acceptable to Agent and Lenders in their respective sole discretion;
(f) Agent shall have received evidence satisfactory to it in its own expense. If said testing requires any disturbance sole discretion that Agent (on behalf of soilsthe Lenders) holds a perfected, then first priority lien in all of the Purchaser agrees Collateral, subject to reinstate no other liens except for Permitted Encumbrances;
(g) As of the property to its original Effective Date, there shall have been (i) other than the commencement of the Bankruptcy Cases and the events contemplated by the Forbearance Agreement, since January 30, 2006, no material adverse change in the business, financial or other condition of the Credit Parties taken as existing prior a whole, the Collateral which would be subject to the undertaking security interest granted to the Agent, or in the projections of the Credit Parties and (ii) no litigation commenced that has not been stayed by the Bankruptcy Court, that has a reasonable likelihood of being determined adversely to any Credit Party and that, if so determined, could reasonably be expected to have a Material Adverse Effect;
(h) [Reserved.]
(i) After giving effect to any Extensions of Credit to be made on the Effective Date, Borrowers shall be in compliance with all financial covenants set forth in this Agreement and Agent shall have received such soil testscertificates and information as it may request in order to verify such pro forma compliance with the financial covenants;
(j) After giving effect to any Extensions of Credit to be made on the Effective Date, Borrowers shall have Borrowing Availability (calculated on a pro forma basis with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration of working capital) of at least $2,000,000, in the aggregate;
(k) [Reserved]
(l) [Reserved]
(m) There shall not exist (i) any Default or Event of Default under the Loan Documents or (ii) any default or event of termination default under any other Indebtedness or agreement of this agreement. If any Credit Party not disclosed on the agreement is terminated all environmental testing and reports will Disclosure Schedules, which could reasonably be provided expected to have a Material Adverse Effect;
(n) There shall have been no direct or indirect change in Senior Management of any Credit Party, except as set forth in Section 7.22;
(o) [Reserved.]
(p) The Fixed Charge Coverage Ratio shall not exceed 0.50 to 1.00, determined on a pro forma basis after giving effect to the Vendor at an equal shared cost. Loans to be made on the Effective Date;
(q) All Loan Documents shall be in form and substance satisfactory to the Agent and the Lenders;
(r) The deposit Credit Parties shall secure be in pro forma compliance (based on the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out 2005 Unaudited Financials) with all financial covenants set forth in Sections 7.15, 7.16, 7.17 and 7.19 as of the testing and; 4 SCHEDULE "A" Page Two To Effective Date after giving effect to the Loans to be read with made on the Effective Date and Agent shall have received evidence in form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of substance satisfactory to it in its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendorpro form compliance;
(4s) satisfying itself that the zoning Holdings and its consolidated Subsidiaries shall have pro forma trailing twelve month EBITDA of the property will permit the use of the property by the Purchaser for its intended purposes;
at least $16,500,000 (5) satisfying itself that a building permit with respect to the Purchaser's proposed construction based on the property will 2005 Unaudited Financials), with any adjustments to such pro forma EBITDA to be available upon compliance with normal procedures therefor.
(6) satisfying itself, satisfactory to Agent in its sole discretion;
(t) The Senior Secured Leverage Ratio shall not exceed 2.00 to 1.00, as (based on the 2005 Unaudited Financials) determined on a pro forma basis after giving effect to the Loans to be made on the Effective Date;
(1u) The Total Leverage Ratio shall not exceed 13.75 to 1.00, (based on the 2005 Unaudited Financials) determined on a pro forma basis after giving effect to the Loans to be made on the Effective Date;
(v) The Agent shall not have become aware of any information or other matter affecting any Credit Party or the transactions contemplated hereby that is inconsistent in a material and adverse manner with any such information or other matter disclosed to the Agent prior to January 30, 2006;
(w) The Agent shall have received a duly executed Borrowing Base Certificate, dated not more than 15 days prior to the Effective Date, in form and substance satisfactory to Agent;
(x) Agent shall have received and reviewed (i) the status audited consolidated balance sheets and related statements of all capital leviesincome, sewer impost feesstockholders’ equity and cash flows of each of Holdings and its consolidated Subsidiaries and CCS prepared in accordance with GAAP for the Fiscal Year ended December 31, local improvement rates, special assessments and other capital or similar charges against the Property2004, (2ii) the status unaudited consolidated balance sheets and related statements of all development charges income, stockholders’ equity and parkland dedication levies cash flows of each of Holdings and its consolidated Subsidiaries and CCS prepared in respect accordance with GAAP for the Fiscal Year ended December 31, 2005 (the “2005 Unaudited Financials”) and (iii) any changes to the forecasts of the Property financial performance of Holdings and its Subsidiaries through 2008. Agent shall be satisfied with the items specified in clause (3i) whether top soil must be removed from or added to (it being understood that Agent is satisfied with the Property in order to permit the Purchaser's proposed constructiondraft consolidated balance sheets and related statements of income, stockholders’ equity and the determination cash flows of the costs thereof. Each of the foregoing conditions is Holdings for the sole benefit Fiscal Year ended December 31, 2005 delivered to Agent prior to March 31, 2006, provided, that if the Credit Parties obtain an extension from the Securities and Exchange Commission regarding the filing of audited financial statements, the Purchaser and preceding date may be waived by extended to April 30, 2006. Any changes specified in clause (ii) shall not be materially worse than the Purchaser in its sole discretion in whole or in part by Notice forecasts previously provided to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidAgent.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance consummation of this agreement upon the Purchaser;transactions set forth in Sections 3 and 4 hereof shall be subject to the satisfaction of the following conditions precedent:
(1a) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior The Administrative Agent shall have received a written opinion (addressed to the undertaking Arrangers, the Administrative Agent, the Issuers and the Lenders) of any such soil tests, in the event each of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaseri) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Company Inc.▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, to this counsel for Holdings, the Borrower and the Restricted Subsidiaries, and (ii) local counsel in each jurisdiction where a Loan Party is organized or which provides the governing law for any Reaffirmation Agreement in respect of a Foreign Pledge Agreement or Foreign Security Agreement, and the laws of which approval may be withheld are not covered by the opinion letter referred to in clause (i) of this paragraph. Each of Holdings and the sole discretion of Borrower hereby requests such Board of Directorscounsel to deliver such opinions.
(3b) satisfying itself The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing (or equivalent concepts in any applicable jurisdiction) of Holdings, the Borrower and the other Loan Parties, the authorization of the transactions contemplated by this Amendment and any other legal matters relating to Holdings, the Borrower and the other Loan Parties or this Amendment, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(c) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by a Financial Officer confirming that, after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
(d) The Administrative Agent shall have received a certificate, dated the Restatement Effective Date and signed by a Financial Officer confirming that the property is fully servicedrepresentations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality, in all respects) on and as of the Restatement Effective Date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date.
(e) The Administrative Agent shall have received, at least three Business Days prior to the Restatement Effective Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, that has been requested at least ten Business Days prior to the Restatement Effective Date.
(f) The Administrative Agent shall have received, to the lot linesextent invoiced at least three Business Days prior to the Restatement Effective Date, with reimbursement or payment of all municipal services fees and other installations reasonable out-of-pocket expenses (including fees, charges and disbursements of counsel), in each case required for public utilities to be paid or pursuant to reimbursed by Holdings or the Borrower on the Restatement Effective Date under any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use agreement entered into by any of the property by Arrangers, the PurchaserAdministrative Agent and the Lenders, on the one hand, and that all municipal leviesHoldings or the Borrower, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforother hand (including the fees and expenses referenced in Section 11 hereof).
(6g) satisfying itselfThe Borrower shall have paid to the Administrative Agent, in its sole discretionfor the account of the Lenders and the Issuers, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments unpaid interest and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies fees in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, Commitments and the determination of Loans that have accrued through (but not including) the costs thereof. Each of Restatement Effective Date.
(h) The Administrative Agent shall have received a reaffirmation agreement, in the foregoing conditions is for the sole benefit of the Purchaser form attached hereto as Exhibits B, C and may be waived D, duly executed by the Purchaser in its sole discretion in whole or in part by Notice to Loan Parties specified on such exhibit.
(i) The Administrative Agent shall have received the Vendor. In the event that any condition contained herein has not been fully satisfied documents specified on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived Exhibit E, duly executed by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidLoan Parties specified on such exhibit.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five amendments contemplated by Article II hereof shall be effective on the date (45the "Amendment Date") business days from acceptance when the Bank has received all of the following documents, each of which shall be in form and substance satisfactory to the Bank:
(a) counterparts of this agreement upon Amendment duly executed and delivered by the PurchaserBorrower;
(1b) satisfying itself such evidence (in its sole the form of a resolution, by-law or otherwise) as is valid under the laws of the State of Delaware to verify the authority of the Borrower to executed and unfettered discretiondeliver this Amendment and a power of attorney, resolutions or other evidence of the authority of the person named therein to sigh this Amendment and any other document required to be given by the Borrower pursuant to this Amendment on behalf of the Borrower legally to bind the Borrower;
(c) specimen signature, certified by an appropriate officer of the Borrower, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees person referred to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. paragraph (Purchaserb) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendorabove;
(4d) satisfying itself that the zoning copies (certified to be true copies and then currently in full force and effect by an appropriate officer of the property will permit Borrower) of all governmental approvals, authorizations, consents and licenses necessary, if any, in connection with the use execution or performance by the Borrower of this Amendment or the performance by the Borrower of the property Revolving Credit Agreement, as amended hereby, or in connection with the payment or remittance by the Purchaser for its intended purposesBorrower of any amounts pursuant thereto;
(5e) satisfying itself that a building permit an opinion of counsel to the Borrower with respect to such matters as the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.Bank shall reasonably request;
(6f) satisfying itselfa certificate, signed by an officer of the Borrower stating that each of the conditions specified in its sole discretionthis Section 4.01 have been met;
(g) a certificate signed by an officer of the Borrower stating that (i) immediately after giving effect to this Amendment, as to no Event of Default, an no event which with notice or the passing of time or both would constitute an Event of Default, shall have occurred and be continuing, (1ii) the status of all capital levies, sewer impost fees, local improvement rates, special assessments representations and other capital or similar charges against the Property, (2) the status of all development charges warranties contained in this Amendment and parkland dedication levies in respect Section 8 of the Property Revolving Credit Agreement are true and correct on and as of the Amendment Date as if made on and as of the Amendment Date, and (3iii) whether top soil must be removed from or added Borrower has paid all costs, accrued and unpaid fees and expenses referred to in Section 5.03 hereof; and
(h) such other documents as the Property Bank shall reasonably request in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidwriting.
Appears in 1 contract
Conditions. The Purchaser's obligation under this This Agreement is conditional for forty-five (45) business days from acceptance of this agreement shall become effective upon the Purchaser;satisfaction of the following conditions in form and substance reasonably satisfactory to the Lender and its counsel:
(1a) satisfying itself No Event of Defaults shall have occurred under the Credit Agreements or Guaranties other than those referred to in its sole and unfettered discretion, Exhibit A hereto or continuing defaults of the environmental & soil same covenants or conditions so long as there is no material adverse change in the financial condition of Borrower and Original Guarantors from their respective financial conditions at the execution and delivery hereof.
(b) All representations and warranties contained herein shall be true and correct as of the property at its own expense. If said testing requires any disturbance Effective Date and as of soils, then the Purchaser agrees date of the execution and delivery hereof.
(c) The ▇▇▇▇▇▇ Trust shall have executed and delivered to reinstate Lender the property to its original condition as existing prior ▇▇▇▇▇▇ Trust Guaranty.
(d) The Guarantors shall have executed and delivered to the undertaking Lender a Principal Amount Letter of any such soil tests, Credit in the event face amount of termination $1,000,000.
(e) The Guarantors shall have executed and delivered to Lender the Guarantor Pledge Agreement
(f) The Borrower and the Guarantors shall have delivered to Lender financial statements and other reports required under the Transaction Documents which have not previously been delivered.
(g) CD Entertainment Ltd., an Ohio limited liability company ("Entertainment") shall have reaffirmed the Subordination Agreement (Deed of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (VendorTrust) dated ------------------------------------------------------------ NOVEMBER 25June 26, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company1997, Russ ▇by and among Entertainment, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Company Inc.and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Trustees, CDH, the Borrower and the Lender, pursuant to a letter in the form of Exhibit F hereto.
(h) One or more of the Borrower and/or Guarantors shall have reimbursed Lender for its costs and expenses related to the preparation and execution of this Agreement, which approval may be withheld in the sole discretion including but not limited to, all filing fees and taxes, fees and expenses of such Board of DirectorsLender's in-house and outside legal counsel, auditors, appraisers and environmental consultants.
(3i) satisfying itself that the property is fully serviced, The Borrower and Guarantors shall have delivered to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for Lender an opinion of counsel substantially in the proposed use form of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforExhibit G hereto.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Sources: Forbearance Agreement (Colonial Downs Holdings Inc)
Conditions. The Purchaser's obligation This Amendment shall not be effective unless and until:
(a) 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 this the Revolving Credit Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon and the PurchaserMajority Term A Lenders under the Term A Credit Agreement;
(1b) satisfying itself the representations and warranties in its sole this Amendment are true and unfettered discretion, correct in all material respects on and as of the environmental & soil conditions date of this Amendment;
(c) Revolver Administrative Agent and Term A Administrative Agent shall have received an officer’s certificate of Borrower certifying (i) the constituent documents of Borrower (or any changes thereto, if any, since the date last certified to Revolver Administrative Agent and Term A Administrative Agent), (ii) the incumbency of the property at its own expense. If said testing requires any disturbance officers of soilsBorrower authorized to execute the Amendment Documents, then (iii) certificate of existence and good standing of Borrower certified by the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking Secretary of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out State of the testing and; 4 SCHEDULE "A" Page Two To be read with State of Delaware, and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaseriv) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of resolutions adopted by the Board of Directors of its parent companyBorrower authorizing the execution, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc.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 noon, New York time, June 27, 2008 (each a “Consenting Revolver Lender”), a fee equal to the product of (A) $1,975,000 times (B) the result of (x) the amount of such Revolver Lender’s Commitment on the effective date of, and after giving effect to, this Amendment, divided by (y) the total aggregate Commitments of all 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 this Amendment by noon, New York time, June 27, 2008 (each a “Consenting Term A Lender”), a fee equal to the product of (A) $325,000 times (B) the result of (x) the amount of such Term A Lender’s Commitment on the effective date of, and after giving effect to, this Amendment, divided by (y) the total aggregate Commitments of 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 Term A Credit Agreement and each of the other Loan Documents to 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 delivered to Borrower);
(g) Revolver Administrative Agent shall have received from Borrower a payment in the amount of $35,000,000, together with interest thereon, to this Agreementbe applied to the Outstanding Amount of all Fourth Amendment Loan Outstandings of each Lender, which approval may be withheld in according to each such Lender’s Pro Rata Share, such that the sole discretion Outstanding Amount of such Board all Fourth Amendment Loan Outstandings shall not exceed $55,000,000 as of Directorsthe date hereof.
(3h) satisfying itself Term A Administrative Agent shall have received from Borrower a payment in the amount of $35,000,000, together with interest thereon, to be applied to the Outstanding Amount of the Term A Loan of each Lender, according to each such Lender’s Pro Rata Share, such that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use Outstanding Amount of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning Term A Loan shall not exceed $65,000,000 as of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefordate hereof.
(6i) satisfying itselfRevolver Administrative Agent and Term A Administrative Agent shall have received from Borrower, (i) documentation evidencing an initial equity investment in its sole discretionBorrower by MP CA Homes LLC in an amount of not less than $380 million (prior to transaction costs) and (ii) a true and correct copy of the Investment Agreement dated as of May 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 amended (any such amendments in form and content satisfactory to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments Revolver Administrative Agent and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies Term A Administrative Agent in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidtheir reasonable discretion).
Appears in 1 contract
Sources: Revolving Credit Agreement and Term Loan a Credit Agreement (Standard Pacific Corp /De/)
Conditions. The Purchaser's obligation under effectiveness of the amendment and restatement of the Existing Credit Agreement pursuant to Section 4 of this Agreement is conditional for forty-five shall be subject to the satisfaction (45or waiver) business days of the following conditions precedent:
(a) The Agent (or its counsel) shall have received from acceptance each of the Borrower, the Parent, each Class B Lender identified on Schedule 1 hereto and the Required Lenders under (and as defined in) the Existing Credit Agreement either a counterpart of this agreement upon Agreement signed on behalf of such party or written evidence satisfactory to the Purchaser;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.
(1b) satisfying itself in The Agent (or its sole and unfettered discretioncounsel) shall have received from each Subsidiary, if any, that is a Subsidiary Loan Party as of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soilsRestatement Effective Date, then the Purchaser agrees to reinstate the property to its original condition as existing prior and is not already a Guarantor, a supplement to the undertaking of any such soil testsGuarantee Agreement, in the event form specified therein, duly executed and delivered on behalf of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided such Person.
(c) The Agent shall have received a favorable written opinion (addressed to the Vendor at an equal shared cost. The deposit shall secure Agent and the obligation to repair any damages caused by such tests. The Purchaser indemnifies Lenders and dated the Vendor for any liability that may arise out Restatement Effective Date) of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part each of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaseri) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ R▇▇▇▇▇▇ ▇. ▇▇ Company Inc.▇▇▇▇▇▇, to this AgreementGeneral Counsel of the Borrower, which approval may be withheld substantially in the sole discretion 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 Board of Directorsother matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions as the Agent or the Required Lenders shall reasonably request. The Parent and the Borrower hereby request such counsel to deliver such opinions.
(3d) satisfying itself that The Agent shall have received such documents and certificates as the property is fully servicedAgent or its counsel may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Restatement Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or the Restatement Transactions, all in form and substance satisfactory to the Agent and its counsel.
(e) The representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects as of the Restatement Effective Date, no Default shall have occurred and be continuing as of the Restatement Effective Date and the Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, the Chief Executive Officer, a Vice President or a Financial Officer of each of the Parent and the Borrower, confirming the foregoing.
(f) The Agent shall have received (i) all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the lot linesextent invoiced, with reimbursement or payment of all municipal services and other installations out-of-pocket expenses required for public utilities to be reimbursed or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;Borrower under the Loan Documents, and (ii) if any Class B Lender is identified on Schedule 1 hereto, all accrued and unpaid interest under the Existing Credit Agreement.
(4g) satisfying itself that The Collateral Requirement shall have been satisfied. The Agent shall have received the zoning results of a search of the property will permit the use of the property by the Purchaser for its intended purposes;
Uniform Commercial Code (5or equivalent) satisfying itself that a building permit filings made with respect to the Purchaser's proposed construction on Loan Parties in the property will be available upon compliance with normal procedures thereforjurisdictions 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.
(6h) satisfying itself, The Agent shall have received evidence that the insurance required by the Loan Documents is in its sole discretion, as to effect.
(1i) the status of The Lenders shall have received all capital levies, sewer impost fees, local improvement rates, special assessments documentation and other capital or similar charges against information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Property, USA PATRIOT Act.
(2j) the status of all development charges The Term Loan Amendment and parkland dedication levies in respect Restatement Agreement dated as of the Property and (3) whether top soil must be removed from or added date hereof relating to the Property Term Loan Agreement shall become effective on the Restatement Effective Date.
(k) An amended and restated Collateral Agreement substantially in order to permit the Purchaser's proposed constructionform of Exhibit C hereto shall be executed and delivered by the parties thereto, and the determination parties thereto shall have executed and delivered any amendments to the Security Documents as shall be reasonably requested by the Collateral Agent to give effect to the Restatement Transactions.
(l) (i) The GM Second Lien Documents, in the forms attached hereto as Exhibit D, as well as the GM Intercreditor Agreement, shall have been executed and delivered by the parties thereto prior to or substantially concurrently with the effectiveness of this Agreement, (ii) the parties thereto shall have executed and delivered the GM Access and Security Agreement in the form attached hereto as Exhibit E prior to or substantially concurrently with the effectiveness of this Agreement, (iii) the parties thereto shall have executed and delivered agreements (including the GM Settlement Agreement), in the forms delivered to the Agent and the Lenders prior to the execution and delivery of this Agreement, relating to certain commercial transactions between the Borrower and GM, copies of such executed agreements shall have been delivered to the Agent and the Agent shall be satisfied that such agreements are effective and that any payments to be made to the Borrower thereunder upon the effectiveness thereof are being made substantially concurrently with the effectiveness of this Agreement and (iv) the Agent shall have received a certificate, dated the Restatement Effective Date and signed by the President, the Chief Executive Officer, a Vice President or a Financial Officer of each of the costs thereofParent and the Borrower, to the effect that true, correct and complete copies of all documents and agreements referred to in clauses (i), (ii) and (iii) of this paragraph, and any and all documents and agreements relating thereto, have been delivered to the Agent. Each The Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the amendment and restatement of the Existing Credit Agreement as contemplated hereby shall not become effective unless each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser satisfied (or waived) at or prior to 5:00 p.m., New York City time, on September 16, 2009 (and, in its sole discretion in whole or in part by Notice to the Vendor. In the event that such conditions are not so satisfied or waived, the Existing Credit Agreement shall remain in effect without giving effect to any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance provisions of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidAgreement).
Appears in 1 contract
Sources: Revolving Credit Agreement (American Axle & Manufacturing Holdings Inc)
Conditions. The Purchaser's obligation under this This Agreement is conditional for fortyshall become effective as of the first date (the “Fifth Amendment Effective Date”) when each of the following conditions shall have been satisfied:
(a) (determined before giving effect to the replacement of any Non-five Consenting Term B-1 Lenders) and each Lender holding Term B-1 Loans (45after giving effect to the replacement of any Non-Consenting Term B-1 Lenders), in each case, (i) business days from acceptance 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 upon Agreement) that such party has signed a Consent and (y) from the PurchaserBorrower and the Administrative Agent, an executed counterpart to this Agreement;
(1b) satisfying itself the representations and warranties set forth in its sole Section 5 above shall be true and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------correct;
(2c) receiving the approval any fees and reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Company Inc., & ▇▇▇▇▇▇▇ LLP) owing by the Borrower to the Administrative Agent and JPMCB pursuant to this Agreement, which approval may be withheld Agreement or any letter agreement entered into in the sole discretion of such Board of Directors.
connection with this Agreement and invoiced at least three (3) satisfying itself that the property is fully serviced, Business Days prior to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof date hereof shall have been paid by the Vendorin full;
(4i) satisfying itself that the zoning all Obligations of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit Borrower with respect to the Purchaser's proposed construction on 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 property will assignment described in Section 3, (ii) all Obligations of the Borrower with respect to the Term B Loans owing to any Assigning Consenting Term B Lender shall be available upon compliance paid in full to such Assigning Consenting Term B Lender concurrently with normal procedures therefor.the assignment described in Section 4(c)(i), (iii) all Obligations of the 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 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 (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 any 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) in the case of any Cashless Consenting Term B Lender, the Cashless Consenting Term B Lender Assigned Amount of such Cashless Consenting Term B Lender, in each case, plus accrued and unpaid interest thereon; and
(6i) satisfying itselfall Obligations of the Borrower 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, (ii) 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 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 (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 case of any Non-Consenting Term B-1 Lender and any Assigning Consenting Term B-1 Lender, the 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 its sole discretioneach case, as to (1) the status of all capital leviesplus accrued and unpaid interest thereon, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3y) whether top soil must be removed from or added to in the Property case of any Cashless Consenting Term B-1 Lender, the Cashless Consenting Term B-1 Lender Assigned Amount of such Cashless Consenting Term B-1 Lender, in order to permit the Purchaser's proposed constructioneach case, plus accrued and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all unpaid interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidthereon.
Appears in 1 contract
Conditions. The Purchaser's obligation under this amendments to the Credit Agreement is conditional for forty-five set forth in Section 1 above shall not become effective until the date (45the “Fourth Amendment Effective Date”) business days from acceptance on which all of this agreement upon the Purchaser;following conditions have been satisfied:
(1a) satisfying itself in its sole and unfettered discretionThe Borrower, each Lender party hereto (constituting all of the environmental & soil conditions of Lenders), each Guarantor, and the property at its own expense. If said testing requires Administrative Agent have delivered their fully executed signature pages hereto.
(b) Without taking into account any disturbance of soilsamendment to, then or amendment and restatement of, the Purchaser agrees to reinstate the property to its original condition as existing NCS Warrant Agreement or Second NCS Warrant Agreement entered into prior to the undertaking date hereof, Tellurian and Nineteen77 Capital Solutions A LP shall have entered into an amendment to, or an amendment and restatement of, the NCS Warrant Agreement on mutually agreed terms, and have entered into an amendment to, or an amendment and restatement of the Second NCS Warrant Agreement on mutually agreed terms.
(c) The Borrower shall have prepaid the Loans on a pro rata basis pursuant to Section 2.05(a) of the Credit Agreement in an aggregate principal amount of $12,000,000 (without taking into account any prepayments of the Loans made prior to the date hereof), plus any and all accrued but unpaid interest, fees and expenses relating to the Loans as of the Fourth Amendment Effective Date. The Administrative Agent (acting at the direction of the Lenders) hereby agrees that: (i) the Borrower shall give notice of such soil testsprepayment to the Administrative Agent by email (which notice must indicate the day on which such prepayment is to be made); and (ii) subject to Section 2.10(a) of the Credit Agreement, such notice shall be given on the day on which such prepayment is to be made.
(d) Each of the representations and warranties contained in the event of termination Section 4 of this agreement. If Amendment shall be true and correct on the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; Fourth Amendment Effective Date as set forth in Section 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Amendment.
(2e) receiving The Borrower shall have paid all reasonable and documented out-of-pocket costs and expenses, including the approval reasonable and documented fees of the Board of Directors of its parent company, Russ L▇▇▇▇▇ and W▇▇▇▇▇▇ ▇▇▇ Company Inc.LLP, to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, counsel to the lot linesLenders, with all municipal services and other installations required for public utilities to be reimbursed or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that Borrower under the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit Credit Agreement in connection with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforthis Amendment.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Tellurian Inc. /De/)
Conditions. The PurchaserThis Modification Agreement shall be deemed effective upon ----------
(a) the due execution and delivery to Bank of this Modification Agreement by each party hereto, (b) Borrower's obligation under this payment of an amendment fee in an amount equal to $3,500, (c) Bank's receipt of the Acknowledgment of Amendment and Reaffirmation of Guaranty substantially in the form attached hereto as Schedule 1, duly executed and delivered by each Guarantor, and (d) Borrower's payment of all outstanding legal fees and expenses. This Modification Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;
(1) satisfying itself in its sole and unfettered discretion, executed under seal as of the environmental & soil date first written above. BORROWER: LENDER: CONCURRENT COMPUTER CORPORATION SILICON VALLEY BANK By: By: -------------------------------- --------------------------------- Name: Name: Title: Title: [CORPORATE SEAL] SCHEDULE 1 GUARANTOR ACKNOWLEDGMENT AND REAFFIRMATION
SECTION 1. Each Guarantor hereby acknowledges and confirms that it has reviewed and approved the terms and conditions of the property at its own expenseWaiver and Third Loan Modification Agreement dated as of even date herewith (the "Modification Agreement").
SECTION 2. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior Each Guarantor hereby consents to the undertaking Modification Agreement and agrees that the Guaranty dated as of April 6, 2006 (the "Guaranty") relating to the Obligations of Borrower under the Loan Agreement shall continue in full force and effect, shall be valid and enforceable and shall not be impaired or otherwise affected by the execution of the Modification Agreement or any such soil testsother document or instrument delivered in connection herewith.
SECTION 3. Each Guarantor hereby agrees that the Security Agreement dated as of April 6, 2006 (the "Security Agreement") securing the Obligations of Borrower under the Loan Agreement and the obligations of the Guarantors under the Guaranty shall continue in full force and effect, shall be valid and enforceable and shall not be impaired or otherwise affected by the execution of the Modification Agreement or any other document or instrument delivered in connection herewith.
SECTION 4. Each Guarantor represents and warrants that, after giving effect to the Modification Agreement, all representations and warranties contained in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, Guaranty and the determination of Security Agreement are true, accurate and complete as if made the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaiddate hereof.
Appears in 1 contract
Sources: Loan Modification Agreement (Concurrent Computer Corp/De)
Conditions. (a) Within sixty days of execution of the Agreement, the Respondents shall submit to RIDEM a metes and bounds survey of the area that encompasses the Conservation Easement that was prepared by a licensed land surveyor. RIDEM shall forward the metes and bounds survey to its title attorney.
(b) Within thirty days of submittal of the survey in paragraph C (5)(a) of the Agreement, the Respondents shall submit to RIDEM a revised Wetland Mitigation Plan. The Purchaser's obligation under revised Wetland Mitigation Plan must show the final wetland edges as delineated in the field (the “Revised Wetland Mitigation Plan”).
(c) If it is determined that the Respondents are not owners in fee of the subject land, this Agreement shall be null and void.
(d) Within ten days of Respondent’s receipt of written notification from RIDEM that the Respondents are owners in fee of the Northern parcel, the Respondents shall finalize and execute the draft Conservation Easement and forward the original executed Conservation Easement to RIDEM (the “Executed Conservation Easement”). RIDEM shall forward the Executed Conservation Easement to the State Properties Committee for review and approval.
(e) If, upon review by the State Properties Committee, the State Properties Committee refuses to approve the Executed Conservation Easement, this Agreement shall be null and void.
(f) Within ten days of Respondent’s receipt from RIDEM of the Executed Conservation Easement approved by the State Properties Committee (the “Approved Conservation Easement”), the Respondents shall record the Approved Conservation Easement in the land evidence records of the town of North Smithfield, Rhode Island and shall provide a copy of the recorded Easement to RIDEM (the “recorded Easement”). The recording of the Approved Conservation Easement shall be at the sole expense of the Respondents.
(g) Upon RIDEM’s receipt of the recorded Easement, RIDEM hereby approves the wetland alterations in the Forested Wetland and Emergent/Shrub Wetland Complex on the Southern parcel that is conditional for forty-five specifically described in the 2003 NOV and the 2010 NOV.
(45h) business days Upon RIDEM’s receipt of the recorded Easement, RIDEM hereby approves the withdrawal of water from acceptance of this agreement upon the PurchaserEmergent/Shrub Wetland Complex on the Southern parcel as follows:
(i) The Respondents are authorized to withdraw water at the rate and volume described in Attachment B;
(1ii) satisfying itself The Respondents agree to apply for and receive a permit from RIDEM prior to withdrawing water from the Emergent/Shrub Wetland Complex on the Southern parcel at a rate or volume that exceeds the rate or volume described in its sole Attachment B;
(iii) The Respondents agree to apply for and unfettered discretionreceive a permit from RIDEM prior to withdrawing water from any other freshwater wetland on the Southern parcel; and
(iv) The Respondents are not authorized to withdraw water from any other freshwater wetlands on the Southern parcel even if water withdrawal is occurring at the rate or volume described in Attachment B.
(i) The Revised Wetland Mitigation Plan shall be subject to RIDEM review and approval. Upon review, RIDEM shall provide written notification to the Respondents either granting formal approval or stating the deficiencies therein. Within fourteen days of receiving a notification of deficiencies, the Respondents shall submit to the RIDEM a revised plan to correct the deficiencies.
(j) Upon approval of the environmental & revised Wetland Mitigation Plan by RIDEM (the “Final Wetland Mitigation Plan”), the Respondents shall complete the wetland creation on the Northern parcel in accordance with the Final Wetland Mitigation Plan and as further described below. With the exception of note 16, all construction notes on the Final Wetland Mitigation Plan are considered part of this Agreement.
(i) Prior to the commencement of work related to the Final Wetland Mitigation Plan the Respondents shall install a continuous uninterrupted line of staked haybales or silt fence between the wetland mitigation sites and the adjacent undisturbed freshwater wetlands. These soil conditions erosion and sediment controls must be regularly inspected and properly and continually maintained (and replaced, if necessary) during and following the completion of the property required wetland restoration. At the discretion and direction of RIDEM, additional on-site soil erosion and sediment controls must be installed, as deemed necessary, to protect any and all freshwater wetlands.
(ii) All excavated material that is removed must be deposited in an appropriate upland location, outside of any and all freshwater wetlands.
(iii) Any areas within the adjacent Perimeter Wetlands that are disturbed shall be restored immediately following the conclusion of wetland construction, but not later than the October 1, 2012 deadline below. All disturbed areas shall be loamed and seeded with a wildlife conservation seed mix and planted with shrubs as described in construction note 15 on the Final Wetland Mitigation Plan.
(iv) If any or all of the required plantings fail to survive at its own expenseleast one full year from the time the plantings have been verified by DEM, the same plant species shall be replanted and maintained until such time that survival occurs over one full year.
(v) All surrounding disturbed areas shall be covered with a plantable soil/loam (if necessary), seeded with a wildlife conservation grass seed mixture (as specified above), and covered with a mat of loose hay mulch.
(vi) All restored wetland areas, including replanted areas, shall be allowed to revegetate naturally and revert to a natural wild state. If said testing requires any disturbance No future clearing, mowing, cutting, trimming, or other alterations are allowed in the restored wetland areas, or within other freshwater wetlands on the Northern parcel, without first obtaining a permit from the RIDEM.
(vii) Upon stabilization of soilsall disturbed areas, then all artificial erosion and sedimentation controls (e.g., silt fences and silt curtains) shall be removed from the Purchaser agrees freshwater wetland. Staked haybales, spread hay mulch, and other naturally-based/bio-degradable erosion control measures may remain in place to reinstate decompose naturally. Prior to the property to its original condition as existing removal of the controls and/or prior to the undertaking contractor vacating the site, all accumulated sediment shall be removed to a suitable upland area and all disturbed surfaces shall be stabilized as described above.
(viii) If RIDEM determines that adequate hydrology to support wetland vegetation has not been established after two years following completion of any final grades at the wetland mitigation sites, the Respondents shall sufficiently lower the grade to attain the proper hydrology. This shall be repeated until such soil teststime that a viable functioning wetland is established as required on the Wetland Mitigation Plan.
(ix) All the wetland restoration work described in sections C (5)(j)(i) through C (5)(j)(vii) above shall be completed prior to October 1, 2012.
(k) By April 1, 2011, the Respondents shall remove and properly dispose of all solid waste from the Southern parcel in accordance with Attachment C. All solid waste removed from the event Southern parcel must be disposed at a licensed solid waste management facility.
(l) The recorded Easement grants to RIDEM the following restrictions on the portion of termination the Northern parcel subject to such Easement:
(i) The portion of this agreement. If the agreement is terminated all environmental testing and reports will be provided Northern parcel subject to the Vendor at an equal shared cost. recorded Easement shall be subject to same in perpetuity in accordance with R.I.G.L. Section 34- 39-3; and
(ii) The deposit recorded Easement shall secure run with the obligation land and be binding and enforceable against the grantors and their successors and/or assigns.
(m) Penalty – Respondents shall pay to repair any damages caused by such tests. The Purchaser indemnifies RIDEM the Vendor for any liability that may arise out sum of the testing and; 4 SCHEDULE "A" Page Two To Twelve Thousand Dollars ($12,000.00).
(n) Payment Schedule – Respondents total payment, Twelve Thousand Dollars ($12,000.00), shall be read with and form a part paid as follows:
(i) Upon execution of this Agreement by the Respondents, the Respondents shall pay to RIDEM the sum of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. Six Thousand Dollars (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors$6,000.00).
(3ii) satisfying itself that By March 31, 2011 the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use remainder of the property by the Purchaseramount due, and that all municipal leviesSix Thousand Dollars ($6,000.00), imposts and permit fees in respect thereof have been shall be paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforRIDEM.
(6iii) satisfying itself, Payments that the Respondents agree to make in its sole discretion, as this Consent Agreement are payable to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser State of Rhode Island and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. are not compensation for actual pecuniary loss.
(iv) In the event that any condition contained herein has not been fully satisfied the Respondents fail to remit to RIDEM a payment on or before its due date, that payment will be considered late and the forty fifth Respondent will be in default. If the payment is not received within thirty days of its due date, interest shall begin to accrue on the ENTIRE unpaid balance at the rate of 12 percent per annum. Interest will accrue at this rate beginning with the day after the due date specified in this Agreement until such date all past due installment payment(s) and interest owed are remitted. Interest shall be calculated using the following generally established accounting principle: Interest due = (45thnumber of days late/365) business day X (0.12) x (entire amount of unpaid balance) This provision does not preclude RIDEM from seeking penalties according to Section D for failure to comply with the acceptance remaining provisions of this Agreement or waived by Agreement.
(v) All payments must be in the Purchaser, this agreement shall come form of a certified check made payable to an end and the deposit and all interest earned thereon the
I. General Treasurer – Environmental Response Fund. All payments shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.delivered to:
Appears in 1 contract
Sources: Consent Agreement
Conditions. The Purchaser's obligation under this Agreement obligations of the Incremental Lenders to make the Tranche B-2 Term Loans hereunder shall not become effective until the date on which each of the following conditions is conditional for forty-five (45) business days from acceptance of this agreement upon the Purchaser;satisfied:
(1a) satisfying itself The Administrative Agent (or, in the case of clause (ii) below, its sole and unfettered discretioncounsel) shall have received (i) from the U.S. Borrower, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing or prior to the undertaking time required by Section 2.03 of any the Credit Agreement, a Borrowing Request with respect to the Borrowing of the Tranche B-2 Term Loans (A) that complies with the requirements of Section 2.03 of the Credit Agreement (treating each reference in such soil tests, in the event of termination Section to a "Revolving Borrowing" as a reference to a Tranche B-2 Term Loan for purposes of this agreement. If paragraph) and (B) pursuant to which the agreement is terminated all environmental testing U.S. Borrower agrees that the provisions of Section 2.16 of the Credit Agreement shall apply to any failure by the U.S. Borrower to borrow the Tranche B-2 Term Loans on the Incremental Effective Date and reports will be provided (ii) from each party hereto, either (A) a counterpart of this Amendment signed on behalf of such party or (B) written evidence satisfactory to the Vendor at an equal shared cost. Administrative Agent (which may include telecopy transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment.
(b) The deposit Administrative Agent shall secure have received a favorable written opinion (addressed to the obligation to repair any damages caused by such tests. The Purchaser indemnifies Administrative Agent and the Vendor for any liability that may arise out Incremental Lenders and dated as of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part Incremental Effective Date) of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaseri) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Company Inc.& ▇▇▇▇▇▇▇▇ LLP, to this Agreementspecial counsel for the U.S. Borrower, which approval may be withheld substantially in the sole discretion form of Exhibit A-1 hereto, (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and General Counsel of the U.S. Borrower, substantially in the form of Exhibit A-2 hereto, and (iii) ▇▇▇▇▇ & ▇▇▇▇▇ (Luxembourg), special Luxembourg counsel for ▇▇▇▇▇, substantially in the form of Exhibit A-3 hereto. The U.S. Borrower hereby requests such Board of Directorscounsel to deliver such opinions.
(3c) satisfying itself that The Administrative Agent shall have received such documents and certificates as the property is fully servicedAdministrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each U.S. Transaction Party, the authorization of the Amendment Transactions and any other legal matters relating to the U.S. Transaction Parties or the Loan Documents, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) On the Incremental Effective Date, (i) the conditions set forth in paragraphs (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied, (ii) immediately prior to and after giving effect to this Amendment and the making of the Tranche B-2 Term Loans, on a Pro Forma Basis, as of the last day of the most recently ended fiscal quarter of the U.S. Borrower for which financial statements have been delivered pursuant to Section 5.04 of the Credit Agreement, the U.S. Borrower and the Subsidiaries shall be in compliance with the covenants contained in Sections 6.11 and 6.12 of the Credit Agreement and (iii) the Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower, dated as of the Incremental Effective Date, confirming compliance with the conditions set forth in clauses (i) and (ii) of this paragraph (d).
(e) The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Incremental Effective Date, including, to the lot linesextent invoiced, with reimbursement or payment of all municipal services out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed by any Loan Party hereunder or under any other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforLoan Document.
(6f) satisfying itself, in its sole discretion, as The Collateral Agent shall have received amendments to (1) each Mortgage securing the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect Obligations of the U.S. Borrower providing that the Tranche A Term Loans, Tranche B Term Loans, Tranche B-2 Term Loans, Trance E Term Loans and New Revolving Facility Loans shall be secured by a Lien on the Mortgaged Property and (3) whether top soil must be removed from or added to that is the Property in order to permit the Purchaser's proposed constructionsubject of such Mortgage, and the determination signed on behalf of the costs thereofrecord owner of such Mortgaged Property.
(g) A Reaffirmation Agreement substantially in the form of Exhibit B hereto (the "Reaffirmation Agreement") shall have been executed and delivered by each party thereto. Each Notwithstanding the foregoing, the obligations of the Incremental Lenders to make Tranche B-2 Term Loans shall not become effective unless each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser satisfied at or prior to 5:00 p.m., New York City time, on December 15, 2005 (and, in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has such conditions are not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaserso satisfied, this agreement Amendment shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidterminate at such time).
Appears in 1 contract
Sources: Incremental Facility Amendment (TRW Automotive Holdings Corp)
Conditions. The Purchaser's obligation under this issuance, amendment or extension of any Facility Letter of Credit is subject to the satisfaction in full of the following conditions on the Issuance Date:
(i) the Borrower shall have delivered to the Issuer at such times and in such manner as the Issuer may reasonably prescribe a Reimbursement Agreement is conditional for forty-five (45) business days from acceptance and such other documents and materials as may be reasonably required pursuant to the terms thereof, and the proposed Facility Letter of this agreement upon the PurchaserCredit shall be reasonably satisfactory to such Issuer in form and content;
(1ii) satisfying itself in its sole and unfettered discretion, as of the environmental & soil conditions Issuance Date no order, judgment or decree of any court, arbitrator or governmental authority shall enjoin or restrain such Issuer from issuing the Facility Letter of Credit and no law, rule or regulation applicable to the Issuer and no directive from any governmental authority with jurisdiction over the Issuer shall prohibit such Issuer from issuing Letters of Credit generally or from issuing that Facility Letter of Credit;
(iii) The following statements shall be true, and the Agent and such Issuer shall have received a certificate, substantially in the form of the property at its own expense. If said testing requires any disturbance of soilscertificate attached hereto as Exhibit E, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused signed by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out a duly authorized officer of the testing and; 4 SCHEDULE "A" Page Two To be read with Borrower dated the Issuance Date stating that:
(a) The representations and form a part warranties contained in Article IV of this Agreement of Purchase are correct on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion as of such Board Issuance Date as though made on and as of Directors.
(3) satisfying itself that the property is fully serviced, such Issuance Date except to the lot linesextent that any such representation or warranty is stated to relate solely to an earlier date, with all municipal services and other installations required for public utilities in which case such representation or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged warranty is correct as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendorsuch earlier date;
(4b) satisfying itself that No Default or Event of Default has occurred and is continuing or would result from the zoning issuance, amendment or extension of such Facility Letter of Credit; and
(c) Upon the issuance, amendment or extension of the property will permit requested Facility Letter of Credit on such Issuance Date, the use aggregate outstanding amount of Borrowing Base Debt shall not exceed the Borrowing Base as of the property by the Purchaser for its intended purposes;most recent Inventory Valuation Date; and
(5iv) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, The Issuer and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser Agent shall have no further obligations to the Vendor under this Agreement except received such other approvals, opinions, or documents as aforesaideither may reasonably request.
Appears in 1 contract
Conditions. The Purchaser's obligation under This Amendment shall become effective only upon satisfaction of the following conditions precedent:
(a) Each Bank shall have received each of the following documents, in form and substance reasonably satisfactory to such Bank and its counsel:
(i) this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon Amendment and the PurchaserSubstituted Notes duly executed by the Borrower;
(1ii) satisfying itself in its sole and unfettered discretion, a certificate of the environmental & soil conditions Secretary of the property at Borrower and each of the Guarantors, dated the date of this Amendment, attesting to all corporate action taken by such entity, including resolutions of its own expense. If said testing requires any disturbance Board of soilsDirectors authorizing the execution, then delivery and performance of this Amendment and each other document to be delivered pursuant to this Amendment, together with a certification that the Purchaser agrees certificate, articles of incorporation and the by-laws of the Borrower and each of the Guarantors have not been amended, modified, revoked or rescinded since the Closing Date;
(iii) a certificate of the Secretary of the Borrower and each of the Guarantors, dated the date of this Amendment, certifying the names and true signatures of the officers of such entity authorized to reinstate sign this Amendment and the property other documents to its original condition be delivered by such entity under this Amendment;
(iv) a certificate of a duly authorized officer of the Borrower, dated the date of this Amendment, stating that the representations and warranties in Article 6 are true and correct in all material respects on such date as existing prior though made on and as of such date (except to the undertaking extent such representation or warranty by its terms relates to the date hereof or another specific date) and that no event has occurred and is continuing which constitutes a Default or Event of any such soil testsDefault;
(v) Guarantee Ratifications, duly executed by each Guarantor;
(vi) an opinion of counsel for the Borrower and Guarantors, dated the date of this Amendment, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged annexed hereto as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorExhibit B;
(4vii) satisfying itself satisfactory evidence that the zoning Borrower and the Guarantors are duly organized, validly existing and in good standing under the laws of the property will permit the use their respective jurisdictions of the property by the Purchaser for its intended purposesincorporation and each other jurisdiction where qualification is necessary;
(5viii) satisfying itself that a building permit with respect such other documents, instruments, approvals, opinions and evidence as the Banks may reasonably require;
(b) the Borrower shall have paid or caused to be paid to the Purchaser's proposed construction on Agent for the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect benefit of the Property Banks an amendment fee of $35,000 and (3) whether top soil must all other fees required to be removed from paid hereunder or added in connection herewith, and to the Property Agent in order to permit full all accrued fees and expenses of the Purchaser's proposed constructionAgent in connection with the preparation, execution and delivery of this Amendment, and the determination other Facility Documents and the consummation of the costs thereof. Each of transactions contemplated thereby;
(c) the foregoing conditions is for Borrower and the sole benefit of Guarantors shall have obtained all consents, permits and approvals (if any) required in connection with the Purchaser execution, delivery and may be waived performance by the Purchaser Borrower and the Guarantors of their obligations hereunder and such consents, permits and approvals shall continue in its sole discretion full force and effect; and
(d) all legal matters in whole or in part by Notice connection with this financing shall be reasonably satisfactory to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end Banks and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidtheir counsel.
Appears in 1 contract
Conditions. This First Amendment shall become effective and the 2019 Incremental Term Loan Lender shall be required to fund its 2019 Incremental Term Loan Commitment immediately upon the satisfaction of the following conditions (the date on which the conditions are satisfied, the “First Amendment Effective Date”):
(a) The Purchaser's obligation under this Agreement is conditional for forty-five Administrative Agent (45or its counsel) business days from acceptance shall have received a duly executed counterpart of this agreement upon First Amendment from the PurchaserAdministrative Agent, the 2019 Incremental Term Loan Lender and the Borrower;
(1b) satisfying itself The Administrative Agent shall have received (i) a Borrowing Request (or another written request, the form of which is reasonably acceptable to the Administrative Agent) in its sole and unfettered discretion, respect of the environmental & soil conditions 2019 Incremental Term Loans in accordance with Section 2.03 of the property Credit Agreement and (ii) a notice (in a form reasonably acceptable to the Administrative Agent) in respect of the Repayment in accordance with Section 2.11(a) of the Credit Agreement;
(c) The Borrower shall have paid (i) all reasonable and documented expenses and other compensation payable to the Administrative Agent pursuant to Section 9.03(a) of the Credit Agreement and to the extent invoiced at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing least three Business Days prior to the undertaking of any such soil testsFirst Amendment Effective Date, and (ii) the Arrangement Fee under and as defined in the event Fee Letter, dated as of termination April 15, 2019, between Credit Suisse Loan Funding LLC and the Borrower (which amounts may be offset against the proceeds of the 2019 Incremental Term Loans);
(d) The Administrative Agent shall have received (i) a certificate of the Borrower, dated the First Amendment Effective Date, executed by a Responsible Officer thereof, which shall (A) certify that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization of the Borrower, certified by the relevant authority of its jurisdiction of organization, (x) the certificate or articles of incorporation, formation or organization of the Borrower attached thereto has not been amended (except as attached thereto) since the date reflected thereon, (y) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of the Borrower, together with all amendments thereto as of the First Amendment Effective Date and such by- laws or operating, management, partnership or similar agreement are in full force and effect and (z) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its applicable governing body authorizing the execution and delivery of this agreement. If Amendment and the agreement Transactions, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (B) identify by name and title and bear the signatures of the officers, managers, directors or other authorized signatories of the Borrower who are authorized to sign the Loan Documents to which the Borrower is terminated all environmental testing a party on the First Amendment Effective Date, and reports will be provided (ii) a good standing certificate for the Borrower and each Loan Guarantor from the Secretary of State of the jurisdiction in which they are organized;
(e) The Administrative Agent shall have received a certificate dated the First Amendment Effective Date, executed by a Responsible Officer of the Borrower certifying:
(i) as to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out satisfaction of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part condition set forth in clause (g) of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Section;
(2ii) receiving the approval that each of the Board representations and warranties of Directors the Loan Parties and each Lighthouse Common Equity Holder contained in Article 3 of its parent companythe Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the First Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date or period, Russ they are true and correct in all material respects as of such date or for such period; provided, however, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates or for such periods; and
(iii) that the aggregate principal amount of the 2019 Incremental Term Loans incurred on the First Amendment Effective Date does not exceed the Incremental Cap.
(f) The Administrative Agent shall have received a customary written opinion of Weil, Gotshal & ▇▇▇▇▇▇ ▇▇▇ Company Inc.LLP, special counsel for the Borrower and each other Loan Party dated the First Amendment Effective Date and addressed to the Administrative Agent and the 2019 Incremental Term Loan Lender dated the First Amendment Effective Date and addressed to the Administrative Agent, the 2019 Incremental Term Loan Lender and the Lenders;
(g) At the time of and immediately after giving effect to this AgreementAmendment and the incurrence of the 2019 Incremental Term Loans, which approval may be withheld in the sole discretion no Event of such Board of Directors.Default exists or will result therefrom; and
(3h) satisfying itself that At least three Business Day prior to the property is fully servicedFirst Amendment Effective Date, if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, then, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property extent reasonably requested by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect 2019 Incremental Term Loan Lender at least five Business Days prior to the Purchaser's proposed construction on First Amendment Effective Date, the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added Borrower shall deliver to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in Administrative Agent a certification regarding its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth beneficial ownership (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaida “Beneficial Ownership Certification”).
Appears in 1 contract
Sources: First Lien Credit Agreement (Shift4 Payments, Inc.)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five This Amendment shall become effective on the date of satisfaction of the following conditions precedent (45) business days from acceptance of this agreement upon such date, the Purchaser;“Third Amendment Effective Date”):
(1a) satisfying itself The Administrative Agent shall have received an executed signature page to this Amendment from (i) each applicable Credit Party, (ii) the Administrative Agent, (iii) the Additional Term B Lender (in its sole the form of a Lender Addendum (Additional Term Lender)) and unfettered discretioneach Converting Term Lender (in the form of a Consenting Lender Addendum) and (iv) Lenders constituting the Requisite Lenders (in the form of a Consenting Lender Addendum).
(b) The Administrative Agent, the Requisite Lenders, the Additional Term B Lender, and their respective counsel shall have received originally executed copies of the environmental favorable written opinion of ▇▇▇▇▇ & soil conditions Lardner LLP, counsel for the Credit Parties, in form and substance satisfactory to the Administrative Agent, dated as of the property at its own expense. If said testing requires any disturbance Third Amendment Effective Date (and each Credit Party hereby instructs such counsel to deliver such opinion to the Administrative Agent, the Requisite Lenders and the Additional Term B Lender).
(c) The Administrative Agent shall have received (i) copies of soilseach Organizational Document for each Credit Party, then the Purchaser agrees to reinstate the property to its original condition certified as existing of a recent date prior to the undertaking Third Amendment Effective Date by the appropriate governmental official or, as applicable, by an officer of any such soil testsCredit Party, in the event of termination of this agreement. If the agreement is terminated all environmental testing (ii) signature and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out incumbency certificates of the testing and; 4 SCHEDULE "A" Page Two To be read with and form officers of each Credit Party executing the Credit Documents to which it is a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. party, (Purchaseriii) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval resolutions of the Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of this Amendment and the other Credit Documents to which it is a party, certified as of the Third Amendment Effective Date by its parent companysecretary or an assistant secretary as being in full force and effect without modification or amendment, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc.(iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to this Agreementdo business, which approval each dated a recent date prior to the Third Amendment Effective Date, and (v) such other documents as the Administrative Agent may be withheld in the sole discretion of such Board of Directorsreasonably request.
(3d) satisfying itself that The Administrative Agent shall have received, at least five (5) Business Days in advance of the property is fully servicedThird Amendment Effective Date, all documentation and other information required by Governmental Authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including, without limitation, as required by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001.
(e) All fees, expenses and other amounts due and payable to the lot linesAmendment Lead Arrangers, with all municipal services the Agents, the Additional Term B Lender and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of Requisite Lenders on the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof Third Amendment Effective Date shall have been paid by or shall have been authorized to be deducted from the Vendor;proceeds of the funding of the Term B Loans.
(4f) satisfying itself that the zoning The Administrative Agent shall have received a certificate of an Authorized Officer of the property will permit Borrower dated the use Third Amendment Effective Date certifying that (a) the representations and warranties contained in the Term Loan Credit Agreement and the other Credit Documents are true and correct in all material respects (or in all respects, if qualified by materiality) on and as of the property date hereof to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects (or in all respects, if qualified by materiality) on and as of such earlier date, and (b) both before and after giving effect to the Purchaser for its intended purposes;making of the Term B Loans, no Event of Default under the Term Loan Credit Agreement exists on the Third Amendment Effective Date.
(5h) satisfying itself that The Borrower shall have provided the Administrative Agent with a building permit Funding Notice substantially in the form of Exhibit A-1 to the Term Loan Credit Agreement no later than 10:00 a.m. (New York City time) at least three Business Days in advance of the Third Amendment Effective Date with respect to the Purchaser's proposed construction borrowing of Additional Term B Loans (as defined in Exhibit A) on the property will be available upon compliance with normal procedures thereforThird Amendment Effective Date.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Sources: Amendment (Douglas Dynamics, Inc)
Conditions. The Purchaser's obligation under (a) Conditions Precedent to the Effectiveness of the Commitments. ------------------------------------------------------------ It is agreed that the respective Commitments of each Loan Participant and the effectiveness of this Agreement is conditional for forty-five subject to the satisfaction prior to or on the Effective Date of the following conditions precedent:
(45i) business days from acceptance of this agreement upon The following documents shall have been duly authorized, executed and delivered by the Purchaser;respective party or parties thereto, shall each be satisfactory in form and substance to such Loan Participant and shall be in full force and effect and executed counterparts shall have been delivered to such Loan Participant and its counsel:
(1) satisfying itself in its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------Mortgage;
(2) receiving the approval a copy of each of the Board Purchase Agreements certified by the Secretary or an Assistant Secretary of Directors the Borrower as being a true and accurate copy of its parent companythe same;
(3) the Consent and Agreement and the Engine Consent and Agreement;
(4) such Loan Participant's Loan Certificate; and
(5) the Remarketing Agreement.
(ii) Such Loan Participant shall have received the following, Russ in each case in form and substance satisfactory to it:
(1) a certified copy of the Articles of Incorporation and Bylaws of the Borrower and a copy of resolutions of the board of directors of the Borrower or the executive committee thereof, certified by the Secretary or an Assistant Secretary of the Borrower, duly authorizing the execution, delivery and performance by the Borrower of this Agreement, the Mortgage and each other document required to be executed and delivered by the Borrower on each Delivery Date in accordance with the provisions hereof and thereof; and
(2) a certificate of the Borrower as to the Person or Persons authorized to execute and deliver this Agreement, the other Operative Documents, and any other documents to be executed on behalf of the Borrower in connection with the transactions contemplated hereby and as to the signature of such person or persons.
(iii) Such Loan Participant shall have received opinions addressed to such Loan Participant and the Security Agent from ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Senior Vice President and General Counsel for the Borrower, Fulbright & ▇▇▇▇▇▇▇▇, special counsel to Borrower, and Kennedy, Covington, ▇▇▇▇▇▇▇ Company Inc.& ▇▇▇▇▇▇▇, L.L.P., special North Carolina counsel to this AgreementBorrower, which approval may be withheld each in form and substance reasonably satisfactory to the sole discretion of such Board of Directorsaddressees thereof.
(3iv) satisfying itself Such Loan Participant shall have received an opinion addressed to such Loan Participant and the Security Agent from counsel to Manufacturer, in respect of the Boeing Purchase Agreement and the Consent and Agreement, in form and substance reasonably satisfactory to the addressees thereof.
(v) Such Loan Participant shall have received evidence in form and substance satisfactory to such Loan Participant that the property is fully serviced, aggregate amount of Advances in connection with each Aircraft shall be sufficient when paid to the lot linesManufacturer in accordance with the Credit Agreement to satisfy the obligation of the Borrower with respect to all advance payments due and payable for each such Aircraft under the Boeing Purchase Agreement.
(vi) Such Loan Participant shall have received evidence in form and substance reasonably satisfactory to such Loan Participant that the rights of any lessee or purchaser of the Aircraft pursuant to any existing contract between the Borrower or any of its Affiliates and such lessee or purchaser shall not conflict with and shall be subordinate to the rights of the Security Agent under the Mortgage.
(vii) Each Senior Loan Participant shall have received executed copies of the Manufacturer Financing Letter and the Midway Letter.
(viii) In respect of Advances paid prior to the Effective Date, with any liens over the Mortgage Estate granted by the Borrower to finance such Advances shall be released and terminated.
(ix) A Uniform Commercial Code financing statement or statements covering all municipal services and other installations required for public utilities the security interests created by or pursuant to any subdivision or other agreement, that same the granting clause of the Mortgage shall have been fully paid for executed and none will be charged as local improvementsdelivered by the Borrower, that same are sufficient and such financing statement or statements shall have been duly filed in all places deemed necessary or advisable in the opinion of counsel for the proposed use Senior Loan Participants or the Junior Loan Participant, and any additional Uniform Commercial Code financing statements deemed advisable by any Loan Participant or its counsel shall have been executed and delivered by the Borrower and duly filed and all other action shall have been taken as is deemed necessary or advisable, in the opinion of counsel for the Senior Loan Participants or the Junior Loan Participant, to establish and perfect the Security Agent's security interest in each of the property by Purchase Agreements.
(x) Each Senior Loan Participant shall have received from Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, special counsel for the PurchaserSenior Loan Participants, an opinion satisfactory in substance and form to such Senior Loan Participant, as to such matters incident to the transactions contemplated hereby as such Senior Loan Participant may reasonably request.
(xi) The Security Agent shall have received for account of the Senior Loan Participants the up-front fee specified in Section 3(b). The Security Agent shall disburse to each Senior Loan Participant such up-front fee on such Loan Participant's Maximum Commitment as separately agreed.
(xii) The Rights Offering shall have closed.
(b) Conditions Precedent to the Loan Participants' Participation in --------------------------------------------------------------- each Advance. It is agreed that all municipal levies, imposts and permit fees the respective obligations of each Loan ------------ Participant to lend its Commitment to the Borrower in respect thereof have been paid of each Advance (including Advances made by Borrower or a third-party financier prior to the Vendor;applicable Borrowing Date) is subject to the satisfaction prior to or on the Borrowing Date for such Advance of the following conditions precedent:
(4i) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit The Security Agent shall have received due notice with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforBorrowing Date for such Advance pursuant to Section 2 hereof (or shall have waived such notice either in writing or as provided in Section 2).
(6ii) satisfying itselfNo change shall have occurred after the date of the execution and delivery of this Agreement in applicable law or regulations thereunder or interpretations thereof by appropriate regulatory authorities which, in the reasonable opinion of such Loan Participant would make it a violation of law or regulations for such Loan Participant to make its sole discretionCommitment for such Advance available to acquire its Loan Certificate(s) or to realize the benefits of the security afforded by the Mortgage.
(iii) Each other Loan Participant shall have made available the amount of its Commitment for such Advance in accordance with Section 2(c) hereof (unless Borrower (in the case of Junior Loan Participant or any Senior Loan Participant) or the Junior Loan Participant (as an additional Drawing made by the Junior Loan Participant hereunder, as in the case of any Senior Loan Participant) shall have made available the amount of such unfunded Commitment) and the Borrower shall have paid to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies Manufacturer its Cash Contribution in respect of the Property applicable Aircraft.
(iv) All appropriate action required to have been taken by any governmental or political agency, subdivision or instrumentality of the United States, on or prior to the Delivery Date for such Aircraft in connection with the transaction contemplated by this Agreement shall have been taken, and all orders, permits, waivers, authorizations, exemptions and approvals of such entities required to be in effect on such Borrowing Date in connection with the transaction contemplated by this Agreement shall have been issued, and all such orders, permits, waivers, authorizations, exemptions and approvals shall be in full force and effect on such Borrowing Date.
(v) On such Borrowing Date, (A) the representations and warranties of the Borrower contained in Section 7 of this Agreement shall be true and accurate as though made on and as of such date except to the extent that such representations and warranties relate solely to an earlier date (in which case such representations and warranties shall be true and accurate on and as of such earlier date), (B) no event shall have occurred and be continuing which constitutes (or would, with the passage of time or the giving of notice or both, constitute) an Event of Default, and (3C) whether top soil must be removed from since December 31, 1999 there shall have been no material and adverse change in the financial or added to the Property in order to permit the Purchaser's proposed construction, and the determination operational condition of the costs thereof. Each Borrower.
(vi) No action or proceeding shall have been instituted nor shall governmental action be threatened before any court or governmental agency, nor shall any order, judgment or decree have been issued or proposed to be issued by any court or governmental agency at the time of such Borrowing Date to set aside, restrain, enjoin or prevent the foregoing conditions is for the sole benefit of the Purchaser completion and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance consummation of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser transaction contemplated hereby.
(vii) The Security Agent shall have no further obligations received for the account of the Senior Loan Participants the commitment fees specified in Section 3(b) and due and payable on or prior to the Vendor under this Agreement except such Borrowing Date. The Security Agent shall distribute to each Senior Loan Participant such commitment fee as aforesaidseparately agreed.
Appears in 1 contract
Conditions. This Second Amendment shall become effective and each 2019 Incremental Revolving Lender shall be required to make its 2019 Incremental Revolving Credit Commitment available to the Borrower, and such 2019 Incremental Revolving Credit Commitments shall become effective, immediately upon the satisfaction of the following conditions (the date on which the conditions are satisfied, the “Second Amendment Effective Date”):
(a) The Purchaser's obligation under this Agreement is conditional for forty-five Administrative Agent (45or its counsel) business days from acceptance shall have received a duly executed counterpart of this agreement upon Second Amendment from the Purchaser;Administrative Agent, the 2019 Incremental Revolving Lenders, the Loan Parties and the Issuing Banks.
(1b) satisfying itself in its sole The Borrower shall have paid (i) all reasonable and unfettered discretion, documented expenses and other compensation payable to the Administrative Agent pursuant to Section 9.03(a) of the environmental & soil conditions of Credit Agreement and to the property extent invoiced at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing least three Business Days prior to the undertaking of any such soil testsSecond Amendment Effective Date, and (ii) the Commitment Fee under and as defined in the event Fee Letter, dated as of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale August 28, 2019, between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇▇ ▇▇▇ Company Inc.▇▇▇, to this AgreementCredit Suisse and the Borrower;
(c) The Administrative Agent shall have received (i) a certificate of the Borrower, dated the Second Amendment Effective Date, executed by a Responsible Officer thereof, which approval may be withheld shall (A) certify that (w) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization of the Borrower, certified by the relevant authority of its jurisdiction of organization, (x) the certificate or articles of incorporation, formation or organization of the Borrower attached thereto has not been amended (except as attached thereto) since the date reflected thereon, (y) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of the Borrower, together with all amendments thereto as of the Second Amendment Effective Date and such by-laws or operating, management, partnership or similar agreement are in full force and effect and (z) attached thereto is a true and complete copy of the sole discretion resolutions or written consent, as applicable, of its applicable governing body authorizing the execution and delivery of this Second Amendment and the Transactions, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (B) identify by name and title and bear the signatures of the officers, managers, directors or other authorized signatories of the Borrower who are authorized to sign the Loan Documents to which the Borrower is a party on the Second Amendment Effective Date, and (ii) a good standing certificate for the Borrower and each Loan Guarantor organized under the laws of Delaware and New York from the Secretary of State of the jurisdiction in which they are organized;
(d) The Administrative Agent shall have received a certificate dated the Second Amendment Effective Date, executed by a Responsible Officer of the Borrower certifying:
(i) as to the satisfaction of the condition set forth in clause (f) of this Section 4;
(ii) that each of the representations and warranties of the Loan Parties and each Lighthouse Common Equity Holder contained in Article 3 of the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the Second Amendment Effective Date; provided that to the extent that any representation and warranty specifically refers to a given date or period, they are true and correct in all material respects as of such Board date or for such period; provided, however, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates or for such periods; and
(iii) that the aggregate principal amount of Directorsthe 2019 Incremental Revolving Credit Commitments made on the Second Amendment Effective Date does not exceed the Incremental Cap.
(3e) satisfying itself that The Administrative Agent shall have received a customary written opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel for the property is fully servicedBorrower and each other Loan Party dated the Second Amendment Effective Date and addressed to the Administrative Agent and the 2019 Incremental Revolving Lenders;
(f) At the time of and immediately after giving effect to this Second Amendment and the making of the 2019 Incremental Revolving Credit Commitments, no Event of Default exists or will result therefrom; and
(g) At least three Business Days prior to the Second Amendment Effective Date, if the Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230, then, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property extent reasonably requested by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect 2019 Incremental Revolving Lenders at least five Business Days prior to the Purchaser's proposed construction on Second Amendment Effective Date, the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added Borrower shall deliver to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in Administrative Agent a certification regarding its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth beneficial ownership (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaida “Beneficial Ownership Certification”).
Appears in 1 contract
Sources: First Lien Credit Agreement (Shift4 Payments, Inc.)
Conditions. The Purchaser's obligation under of the Lenders and the Administrative Agent to execute and to perform this Agreement is conditional for forty-five (45) business days from acceptance Amendment shall be subject to full satisfaction of this agreement upon the Purchaser;following conditions precedent on or before the Sixth Amendment Effective Date:
(1a) satisfying itself in its sole and unfettered discretionCopies, certified as of the Sixth Amendment Effective Date, of the environmental & soil conditions corporate documents or resolutions of the property at its own expense. If said testing requires any disturbance of soils, then Borrower and the Purchaser agrees to reinstate Loan Guarantors as the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that Administrative Agent may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property request evidencing necessary action by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit Borrower or such Loan Guarantors with respect to the Purchaser's proposed construction on approval and authorization of this Amendment and all other agreements or documents delivered pursuant hereto as the property will be available upon compliance with normal procedures thereforAdministrative Agent may request.
(6b) satisfying itselfThis Amendment shall have been duly executed by the Borrower and delivered to the Administrative Agent, and executed by the Lenders and the Administrative Agent.
(c) Each Loan Guarantor shall have duly executed and delivered to the Administrative Agent a Reaffirmation of its Unlimited Continuing Guaranty, such reaffirmation to be in form and substance acceptable to the Administrative Agent in its sole discretion.
(d) The Borrower shall have duly executed and delivered to the Administrative Agent an Amended and Restated Revolving USD Loan Note to the order of JPMorgan Chase Bank, N.A. in the amount of $27,000,000, and in form and substance the same as Exhibit A to this Amendment.
(1e) The Borrower shall have duly executed and delivered to the status Administrative Agent a Term Loan Note to the order of all capital leviesJPMorgan Chase Bank, sewer impost feesN.A. in the amount of $10,000,000, local improvement rates, special assessments and other capital or similar charges against in form and substance the Property, same as Exhibit B to this Amendment.
(2f) the status of all development charges The Borrower and parkland dedication levies in respect each of the Property Loan Guarantors shall have duly executed and (3) whether top soil must be removed from or added delivered to the Property in order Administrative Agent the Master Amendment to permit Pledge and Security Agreements, dated as of May 31, 2010.
(g) The Borrower shall have delivered a Borrowing Base Certificate calculating the Purchaser's proposed constructionBorrowing Base as of April 17, and the 2010, together with supporting information with respect to Borrower’s determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth Borrowing Base.
(45thh) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser The Borrower shall have no further obligations paid to JPMorgan Chase Bank, N.A. an amendment fee in the Vendor under this Agreement except as aforesaidamount of $92,500.
Appears in 1 contract
Sources: Credit Agreement (Escalade Inc)
Conditions. The Purchaser's obligation under This Agreement and the Amended Credit Agreement shall become effective on the date (the “Second Amendment Effective Date”) on which all of the following conditions precedent have been satisfied or waived:
(a) the Administrative Agent shall have received this Agreement is conditional for forty-five Agreement, duly executed and delivered by a duly authorized officer of each of (45A) business days from acceptance of this agreement upon the PurchaserBorrower, (B) the Administrative Agent, (C) each Guarantor and (D) the Refinancing Term B-1 Lenders party hereto;
(1b) satisfying itself in its sole the Borrower shall have paid, or caused to have been paid, to the Second Amendment Arrangers, the Administrative Agent and unfettered discretionthe Refinancing Term B-1 Lenders, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soilsas applicable, then the Purchaser agrees to reinstate the property to its original condition as existing all fees and other amounts due and payable on or prior to the undertaking date hereof, including, without limitation, to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any such soil testsLoan Party hereunder, under any Loan Document or as otherwise mutually agreed prior to the Second Amendment Effective Date;
(c) the representations and warranties of the Borrower set forth in the event Amended Credit Agreement, and of termination each Loan Party in each of the Loan Documents to which it is a party, shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such qualification) on and as of the Second 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 Second 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 agreement. If Section 3;
(f) the agreement is terminated all environmental testing and reports will be provided Administrative Agent shall have received a written opinion (addressed to the Vendor at an equal shared cost. The deposit shall secure Administrative Agent and the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out Refinancing Term B-1 Lenders and dated as of the testing and; 4 SCHEDULE "A" Page Two To Second Amendment Effective Date) of Dechert LLP, which shall be read with in form reasonably satisfactory to the Administrative Agent, and form a part covering such other matters relating to the 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 Refinancing Term B-1 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 of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) all in form and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------substance reasonably satisfactory to the Administrative Agent and its counsel;
(2h) receiving to the approval extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation and to the extent requested by the Administrative Agent or any Refinancing Term B-1 Lender, the Borrower shall deliver to the Administrative Agent and such Refinancing Term B-1 Lender, as applicable, a Beneficial Ownership Certification at least three Business Days prior to the Second Amendment Effective Date;
(i) substantially concurrently with the making of the Board Term B-1 Loans, the Existing Term B Loans (together with any accrued but unpaid interest thereon) shall be repaid in full (including via a cashless roll election in accordance with procedures established by the Administrative Agent and set forth in this Agreement);
(j) the Administrative Agent shall have received a solvency certificate from a Financial Officer of Directors the Borrower substantially in the form of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., Exhibit C to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4k) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that Administrative Agent shall have received a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itselfBorrowing Request no later than 12:00 noon, in its sole discretionNew York City time, as to at least one (1) Business Day prior to the status requested date of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies proposed Borrowing in respect of the Property and Term B-1 Loans; and
(3l) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived extent reasonably requested by the Purchaser in its sole discretion in whole Administrative Agent or in part by Notice any Refinancing Term B-1 Lender at least seven Business Days prior to the Vendor. In Second Amendment Effective Date, the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement Borrower shall come to an end and the deposit and all interest earned thereon shall be returned have provided to the Purchaser 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 deductionlimitation, and the Purchaser shall have no further obligations USA PATRIOT Act, at least three Business Days prior to the Vendor under this Agreement except as aforesaidSecond Amendment Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Conditions. 4.1 The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance agreement of the Creditor Parties contained in Clause 3.1 of this agreement upon Second Supplemental Agreement shall be subject to the Purchaserfollowing condition that the Creditor Parties shall have received in form and substance satisfactory to the Security Trustee on behalf of the Lenders and their legal advisers on or before the signature hereof:
(a) a certificate of a Director of the Borrower confirming the names and offices of all the Directors and/or Officers of the Borrower, and confirming that the Borrower’s incorporation and constitutional documents have not been altered or amended since 23 March 2009;
(1b) satisfying itself in its sole true and unfettered discretion, complete copies of the environmental & soil conditions of the property resolutions passed at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval meeting of the Board of Directors of the Borrower, authorising and approving the execution of this Second Supplemental Agreement and any other document or action to which the Borrower is a party, and authorising its parent companyappropriate officer or officers or other representatives to execute the same on its behalf;
(c) the original of any power of attorney issued by the Borrower pursuant to such resolutions aforesaid;
(d) true and complete copies of the resolutions passed at a meeting of the Board of Directors of the Corporate Guarantor, Russ 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 authorising its appropriate officer or officers or other representatives to 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 the Second Mortgage Addendum(including without limitation) all necessary governmental and other official approvals and consents in such pertinent jurisdictions as the 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 ▇▇▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the VendorIslands;
(4h) satisfying itself that such legal opinions as the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies Security Trustee may require in respect of the Property matters contained in this Second Supplemental Agreement and the Second Mortgage Addendum;
(3i) whether top soil must be removed a duly executed confirmation from or added each Security Party in the form of Schedule 3 hereto, confirming that (notwithstanding the amendments made to the Property in order Loan Agreement pursuant to permit this Agreement) the Purchaser's proposed construction, Finance Documents to which it is a party and its obligations thereunder remain valid and binding; and
(j) receipt by the determination Lenders of the costs thereof. Each expenses referred to in Clause 7.1.
4.2 The agreement of the foregoing conditions is for Creditor Parties contained in Clause 3.1 of this Second Supplemental Agreement shall be further subject to the sole benefit condition that the Creditor Parties shall receive evidence satisfactory to the Agent of the Purchaser agreement of the relevant banks and may be waived by the Purchaser financial institutions to similar amendments (as set out in its sole discretion in whole or in part by Notice Clause 5 hereof) to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day other loan facilities currently in place with Paragon Shipping Inc. as borrower within 90 days from the acceptance date of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidSecond Supplemental Agreement.
Appears in 1 contract
Conditions. This Amendment shall become effective on the date (the "AMENDMENT EFFECTIVE DATE") as of which each of the following conditions precedent shall have been satisfied in a manner satisfactory to the Bank:
(a) The Purchaser's obligation under Bank shall have received the following documents each in form and substance reasonably satisfactory to the Bank:
(i) this Agreement is conditional for forty-five (45) business days from acceptance of this agreement upon Amendment, duly executed by the PurchaserBorrowers;
(1ii) satisfying itself the Acknowledgment and Consent, substantially in its sole the form attached hereto as Exhibit I, duly executed by DWG and unfettered discretionPF;
(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 principal amount of $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 the order of the Bank and in the original principal amount of $12,500,000 (the "REVOLVING B NOTE");
(v) UCC Financing Statement Amendment, amending Schedule A to UCC-1 Financing Statement.
(vi) an opinion, dated the Amendment Effective Date, of the environmental law firm of Paul, Weiss, Rifkind, Wharton & soil conditions of the property at its own expense. If said testing requires any disturbance of soilsGarrison LLP, then the Purchaser agrees to reinstate the property to its original condition as existing prior counsel to the undertaking of any such soil testsBorrowers, in the event of termination of this agreement. If the agreement is terminated all environmental testing ▇▇ form and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ substanc▇ ▇▇▇▇▇nab▇▇ ▇▇▇ Company Inc.▇▇▇factory to the Bank and its counsel; and
(vii) such other agreements, to this Agreementinstruments, which approval opinions and other documents as the Bank may be withheld in the sole discretion of such Board of Directorsreasonably request.
(3b) satisfying itself that the property is fully serviced, The Bank shall have received all fees and other amounts due and payable to the lot linesBank, including, without limitation, the Commitment Fee referred to in Section 3 hereof and all legal fees, costs and expenses of the Bank in connection with all municipal services the Credit Agreement, this Amendment and the other installations required for public utilities or pursuant to any subdivision related agreements and documents
(i) The representations and warranties contained in Section 4 hereof, in Article IV of the Credit Agreement and in each other Loan Document and certificate or other agreement, that same have been fully paid for writing delivered to the Bank pursuant hereto on or prior to the Amendment Effective Date are true and none will be charged correct on and as local improvements, that same are sufficient for the proposed use of the property 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 (in which case such representation and warranty shall be true and correct on and as of such earlier date); (ii) no Event of Default or Default has occurred and 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 Party has occurred and is continuing on the Amendment Effective Date, except as previously disclosed in writing to the Bank and consented to in writing by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforBank.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Sources: Pledge and Security Agreement (Triarc Companies Inc)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchaser;
(1) satisfying itself fulfillment, in its sole and unfettered discretiona manner satisfactory to the Agent, of the environmental & soil conditions each of the property at its own expense. If said testing requires any disturbance of soils, then following conditions precedent (the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any date such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same conditions are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement fulfilled or waived by the PurchaserLenders is hereafter referred to as the "Amendment Effective Date"):
(a) The representations and warranties contained herein, this agreement in Section 5 of the Loan Agreement and in each other Loan Document and certificate or other writing delivered to the Agent or any Lender pursuant hereto on or prior to the Amendment Effective Date shall come be correct on and as of the Amendment Effective Date as though made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an end earlier date (in which case such representations and warranties shall be true and correct on and as of such date).
(b) No Default or Event of Default shall have occurred and be continuing on the Amendment Effective Date, or result from this Amendment becoming effective in accordance with its terms.
(c) The Agent shall have received the Amendment Fee (as hereinafter defined) in immediately available funds.
(d) The Agent and the deposit Lenders shall have executed this Amendment and received a counterpart of this Amendment, which bears the signature of the Borrower.
(e) The Guarantor shall have executed and delivered to the Agent an Acknowledgment and Consent in the form attached hereto as Exhibit A.
(f) The Agent shall have received a fully executed Assignment and Assumption (Loan Agreement), in form and substance satisfactory to the Lenders.
(g) The Agent shall have received a fully executed Amendment to the Purchase Agreement, in form and substance satisfactory to the Lenders (the "Purchase Agreement Amendment").
(h) Each of the conditions precedent to the effectiveness of the Purchase Agreement Amendment shall have been satisfied or waived by the Lenders and the Purchase Agreement Amendment shall become effective concurrently with the effectiveness of this Amendment.
(i) The Borrower shall have authorized the Agent to submit for filing a UCC Financing Statement naming the Borrower as debtor and the Agent as secured party, and a corresponding amendment to the original UCC Financing Statement filed against the Original Borrower.
(j) All appropriate changes shall have been made to the Cash Management Accounts to reflect the assignment of such accounts by the Original Borrower to the Borrower, and all interest earned thereon necessary Cash Management Agreements shall have been entered into with respect thereto.
(k) The Agent shall have received one or more opinions of Borrower's counsel addressed to the Agent and the Lenders, and in form and substance satisfactory to the Agent, with respect to such matters as the Agent may reasonably request.
(l) All legal matters incident to this Amendment shall be returned satisfactory to the Purchaser without deductionAgent, the Lenders and their counsel.
(m) The Agent, the Purchaser Lenders and their counsel shall have no further obligations to the Vendor under this Agreement except received such other documents (including, but not limited to, resolutions, officer's certificates and other corporate documents) as aforesaidany such Person may reasonably request.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional Each Commitment Increase shall become effective on the proposed effective date set forth in the Borrowers’ request for forty-five a Commitment Increase or such later date as the Administrative Agent and the Borrowers agree (45the “Increase Effective Date”), which in any event shall be on or after the date on which the Administrative Agent shall have received:
(i) business days from acceptance of this agreement upon the Purchaseran Additional Lender Supplement for each Additional Lender participating in such Commitment Increase and an Increasing Lender Supplement for each Increasing Lender participating in such Commitment Increase, in each case duly executed by all parties thereto;
(1ii) satisfying itself a certificate of a Principal Financial Officer dated such date and certifying that, on a pro forma basis (assuming that such Incremental Commitments are fully drawn), WIL-Ireland shall be in its sole and unfettered discretion, compliance with each of the environmental & soil conditions Financial Covenants as of the property at its own expense. If said testing requires any disturbance of soils, then most recently ended Fiscal Quarter for which financial statements are available;
(iii) such documents and opinions consistent with those delivered on the Purchaser agrees to reinstate the property to its original condition Effective Date as existing prior to the undertaking organizational power and authority of any the Borrowers to borrow hereunder after giving effect to such soil testsCommitment Increase as the Administrative Agent may reasonably request;
(iv) such evidence of appropriate corporate or other organizational authorization on the part of the Borrowers, WIL-Ireland and the other Obligors with respect to such Commitment Increase as the Administrative Agent may reasonably request;
(v) if requested by the Administrative Agent, an opinion or opinions, in the event of termination of this agreement. If the agreement is terminated all environmental testing form and reports will be provided substance reasonably satisfactory to the Vendor at Administrative Agent, from counsel to the Borrowers and the Obligors reasonably satisfactory to the Administrative Agent, covering such matters relating to such Commitment Increase as the Administrative Agent may reasonably request;
(vi) a certificate of a Responsible Officer of WIL-Ireland, dated such Increase Effective Date, certifying that (A) the representations and warranties set forth in Article VI and in the other Loan Documents are true and correct in all material respects (except to the extent qualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct in all respects) as of, and as if such representations and warranties were made on, such Commitment Increase Effective Date (unless such representation and warranty expressly relates to an equal shared cost. The deposit earlier date, in which case such representation and warranty shall secure continue to be true and correct in all material respects (except to the obligation extent qualified by materiality or reference to repair any damages caused by Material Adverse Effect, in which case such tests. The Purchaser indemnifies the Vendor for any liability that may arise out applicable representation and warranty shall be true and correct in all respects) as of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchasersuch earlier date) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (VendorB) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------no Default or Event of Default has occurred and is continuing on such Commitment Increase Effective Date; and
(2vii) receiving other customary closing certificates and documentation (similar to the approval of documentation required to be delivered on the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully servicedEffective Date under Section 5.01, to the lot lines, with all municipal services and other installations required for public utilities or pursuant extent applicable) relating to any subdivision or other agreement, that same have been fully paid for and none will be charged such Commitment Increase as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforAdministrative Agent may reasonably request.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment shall be subject to fulfillment of the Purchaserfollowing conditions:
(a) The Agent shall have received on the date hereof, in form and substance satisfactory to the Agent, the following:
(i) a fully-executed original of this Amendment;
(1ii) satisfying itself in its sole and unfettered discretion, evidence of the environmental & soil conditions payment of all fees and amounts set forth in Exhibit A attached hereto;
(iii) an opinion of outside counsel to the Lessee and the Guarantors, addressed to the Agent, the Owner Trustee and the Lenders and Holders, including without limitation (A) an opinion of such counsel with respect to noncontravention of the property at its own expense. If said testing requires any disturbance of soilsCiticorp Loan Documents and agreements under which the Senior Subordinated Notes have been issued, then by this Consent Agreement, and the Purchaser agrees to reinstate instruments and documents executed by the property to its original condition as existing prior Lessee, Construction Agent and Guarantors in connection herewith, and (b) an opinion to the undertaking effect that the execution, delivery and performance of this Consent Agreement will not affect the priority of any such soil testsLien in favor of the Owner Trustee or the Agent (on behalf of itself, any Lender or any Holder) that exists under the Operative Agreements (which opinion may be included in the event opinion referred to in clause (iii)(A) above);
(iv) a certificate of termination the Secretary or an Assistant Secretary of this agreement. If each of the agreement Lessee and each Guarantor in such form as is terminated all environmental testing and reports will be provided reasonably acceptable to the Vendor at an equal shared cost. The deposit shall secure Agent attaching and certifying as to (A) the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval resolutions of the Board of Directors of Lessee or such Guarantor (as the case may be) duly authorizing the execution, delivery and performance by Lessee or such Guarantor (as the case may be) of this Amendment and each of the other Operative Agreements delivered in connection with this Amendment to which such Lessee or Guarantor is or will be a party, (B) the fact that neither its parent companycertificate of incorporation nor its bylaws have been changed from the versions that were certified and delivered to the Agent on the Initial Closing Date (or if the certificate of incorporation has been changed, Russ such certificate of incorporation certified as of a recent date by the Secretary of State of the State of its incorporation or, if the by-laws have been changed, such by-laws certified by the secretary of the Lessee or the applicable Guarantor), and (C) the incumbency and signature of persons authorized to execute and deliver on its behalf this Amendment and each of the other Operative Agreements delivered in connection with this Amendment to which such Lessee or Guarantor is a party;
(v) a fully-executed original of an amendment to the Intercreditor Agreement between the Agent and Citicorp, in the form of Exhibit F attached hereto;
(vi) a fully-executed original of the ▇▇▇▇▇▇▇ Intercreditor Agreement;
(vii) the payment of $19,022.10, representing the prepayment of the July installment of the restructuring fee described in Section 5(f) of Amendment No. 7 (which fee is separate from and in addition to the Restructuring Fee described in this Amendment);
(viii) an executed Fourth Modification to Mortgage and Seventh Amendment to Memorandum of Lease, dated as of July 12, 2002, in the form of Exhibit G attached hereto, acceptable to the Agent and the Owner Trustee;
(ix) evidence satisfactory to the Agent and the Owner Trustee of the dissolution of Aviation Sales Finance Company, Aviation Sales Maintenance, Repair & Overhaul Company, Aero Hushkit Corporation and Aviation Sales SPS I, Inc.;
(x) copies of the fully executed BofA Documents;
(xi) copies of the fully executed ▇▇▇▇▇▇▇ Documents;
(xii) a copy of the fully executed New Aviation Sales Credit Agreement, and all exhibits and schedules thereto;
(xiii) any additional agreements, instruments or documents which it may reasonably request in connection herewith;
(b) The correctness in all material respects of the representations and warranties of the Owner Trustee, Construction Agent and the Lessee contained herein and in each of the Operative Agreements;
(c) No material adverse change shall have occurred in the business, assets, management, operations, financial condition or prospects of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales since December 31, 2001;
(d) Since December 31, 2001, no permit, agreement, lease, or license which, in the judgment of the Agent, is material to the business, operations or employee relations of Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales, shall have been terminated, modified, revoked, breached, or declared to be in default, or if breached or declared to be in default during such period, such breach or default shall have been cured or waived on terms satisfactory to the Agent and Lenders;
(e) Lenders and Holders shall have reviewed all litigation pending or threatened against Aviation Sales or any Guarantor or any Subsidiary of Aviation Sales and determined to their satisfaction that no Material Adverse Effect will, or is reasonably likely to, result from the existence thereof; and
(f) None of the members of Aviation Sales' Board of Directors as of December 31, 2000 (except ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Company Inc.and ▇▇▇▇▇▇ ▇▇▇▇▇▇), to this Agreement, which approval may be withheld in the sole discretion shall have ceased acting as members of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation under Any Incremental Commitments shall become effective as of the applicable Increase Effective Date; provided that:
(i) all representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of such Increase Effective Date (both before and after giving effect thereto and, in the case of each Borrowing of Term Loans pursuant to Incremental Commitments, the application of proceeds therefrom) with the same effect as if made on and as of such date except to the extent such representations and warranties expressly relate to an earlier date and in such case, such representations and warranties shall be true and correct in all material respects as of such date; provided that any representation or warranty that is conditional for forty-five (45) business days from acceptance qualified by materiality, “Material Adverse Change” or “Material Adverse Effect” shall be true and correct in all respects, as though made on and as of this agreement upon the Purchaserapplicable date, before and after giving effect to such Borrowing of Term Loans;
(1ii) satisfying itself no Default or Event of Default shall have occurred and be continuing or would result from the Borrowings to be made on such Increase Effective Date; provided, for the avoidance of doubt, that no Default or Event of Default in its sole respect of Section 6.03 shall have occurred and unfettered discretion, be continuing nor result from the making of such Borrowing on and as of the environmental & soil conditions applicable Increase Effective Date, without giving effect to any Asset Coverage Ratio Cure Period;
(iii) after giving effect to the incurrence of such Incremental Commitments, the Aggregate Exposure with respect to all Lenders shall not exceed $4,000,000,000; and
(iv) the Borrower shall have duly executed and delivered to the Administrative Agent a ShortMortgage Supplement to the Long Form Mortgage and/or other Collateral Documents granting first priority Liens and security interests in any additional Pool Assets required to maintain compliance with Section 6.03 (subject to Liens permitted under Section 6.01(a)) in favor of the property at its own expense. If said testing requires any disturbance Administrative Agent, for the benefit of soilsthe Lenders, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of and shall have caused any such soil testsShort Form Mortgage Supplement to be filed with the FAA in order to perfect the Liens on such additional Pool Assets, and a stamped version thereof in the event form of termination Aircraft, and evidence of this agreement. If the agreement is terminated all environmental testing and reports such filing will be provided to the Vendor at an equal shared cost. The deposit shall secure Administrative Agent promptly after being made available by the obligation to repair any damages caused by FAA and no later than 25 business days after the applicable Increase Effective Date (or such tests. The Purchaser indemnifies the Vendor for any liability longer period that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, reasonably acceptable to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1Administrative Agent) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against Borrower shall register the Property, (2) International Interest in connection with the status of all development charges and parkland dedication levies in respect of applicable Short Form Mortgage with the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidInternational Registry.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance of this agreement amendments described in Sections 2 and 3 above shall become effective upon the Purchaserdate on which each of the following conditions shall have been satisfied:
(a) this Amendment shall have been executed and delivered by each party hereto, the Special Obligor Letter dated as of the date hereof shall have been executed and delivered by each party thereto (the "Special Obligor Letter"), and the Fee Letters (together with this Amendment and the Special Obligor Letter, the "Closing Documents") dated as of the date hereof for each Purchaser Group shall have been executed and delivered by each party thereto;
(1b) satisfying itself in its sole the Administrative Agent and unfettered discretion, each Purchaser Agent shall have received certified copies of (i) the resolutions of the environmental & soil conditions board of directors of the property at Seller authorizing the execution and delivery of the Closing Documents and the performance by the Seller of the Agreements (as amended by this Amendment) and the Fee Letters and (ii) the certificate of incorporation and bylaws of the Seller;
(c) the Administrative Agent and each Purchaser Agent shall have received a certificate of the Secretary or Assistant Secretary of the Seller certifying the names and true signatures of the officers of the Seller authorized to sign the Closing Documents;
(d) the Administrative Agent and each Purchaser Agent shall have received certified copies of (i) the resolutions of the board of directors (or its own expense. If said testing requires any disturbance designated committee) of soils, then the Originator and the Servicer authorizing the execution and delivery of the Closing Documents and the performance by the Originator and the Servicer of the Agreements (as amended by this Amendment) and the Fee Letters and (ii) the certificate of incorporation and bylaws of the Originator and the Servicer;
(e) the Administrative Agent and each Purchaser agrees Agent shall have received a certificate of the Secretary or Assistant Secretary of the Originator and the Servicer certifying the names and true signatures of the officers of the Originator and the Servicer authorized to reinstate sign the property to its original condition as existing prior Closing Documents;
(f) the Administrative Agent and each Purchaser Agent shall have received favorable opinions in form and substance acceptable to the undertaking Administrative Agent and each Purchaser Agent regarding corporate and enforceability matters.
(g) the Administrative Agent and each Purchaser Agent shall have received evidence of any such soil tests, in payment by the event Seller of termination of this agreement. If all accrued and unpaid fees (including those contemplated by the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (PurchaserFee Letters) and ------------------------------------------------------------ METRUS PROPERTIES LTD. expenses (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval including all invoiced fees and expenses of the Board of Directors of its parent company, Russ ▇Maye▇ ▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor▇);
(4h) satisfying itself that the zoning of the property will permit the use of the property by the Administrative Agent and each Purchaser for its intended purposes;
(5) satisfying itself that a building permit Agent shall have received good standing certificates with respect to the Purchaser's proposed construction on Seller issued by the property will be available upon compliance with normal procedures therefor.Secretaries of the States of Delaware and California; and
(6) satisfying itself, in its sole discretion, as to (1i) the status of all capital levies, sewer impost fees, local improvement rates, special assessments Administrative Agent and other capital or similar charges against each Purchaser Agent shall have received good standing certificates with respect to the Property, (2) Originator issued by the status of all development charges and parkland dedication levies in respect Secretaries of the Property States of Delaware and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidCalifornia.
Appears in 1 contract
Sources: Omnibus Amendment (Ingram Micro Inc)
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance effectiveness of this agreement upon Amendment is subject to the Purchaserfollowing conditions precedent:
(a) delivery to the Administrative Agent of the following documents, each duly authorized and executed and in form and substance reasonably satisfactory to the Administrative Agent:
(i) this Amendment executed by each Credit Party that is a party hereto, the Administrative Agent, the Collateral Agent and the Lenders;
(1ii) satisfying itself a guaranty by Pure Solutions (the “Subsidiary Guaranty”) whereby Pure Solutions shall guaranty all Obligations of the Borrowers under the Credit Agreement;
(iii) a Joinder to Credit Agreement and Information Certificate whereby Pure Solutions shall become a “Credit Party” under the Credit Agreement;
(iv) a Collateral Assignment of Stock Purchase Agreement by COMSYS IT and acknowledged by the PS Sellers;
(v) a pledge amendment whereby COMSYS IT shall pledge one hundred percent of the capital stock of Pure Solutions to the Collateral Agent, for the benefit of the Lenders, together with all stock certificates of Pure Solutions, assignments separate from certificate, proxies and other documents as the Collateral Agent or the Administrative Agent reasonably shall request, pursuant to which the Collateral Agent shall have received, for the benefit of the Administrative Agent, the Collateral Agent and the Lenders, a first priority security interest in all of the issued and outstanding capital stock of Pure Solutions;
(vi) a security agreement executed by Pure Solutions securing all of its sole obligations under the Subsidiary Guaranty;
(vii) a certificate of the Secretary of Pure Solutions certifying: (A) the names and unfettered discretiontrue signatures of the officers of Pure Solutions authorized to execute, deliver and perform all obligations hereunder; (B) copies of the resolutions of the board of directors or other governing body of Pure Solutions approving and authorizing the execution, delivery and performance, as applicable, of all other documents, instruments or agreements to be executed or delivered in connection herewith and (C) the environmental & soil conditions Organizational Documents of Pure Solutions which, if applicable, shall be certified by the Secretary of State of California as of a recent date; and
(viii) an opinion of counsel to Pure Solutions addressed to the Administrative Agent, the Collateral Agent and Lenders, and such other documents, certificates, waivers and third party agreements as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent; and
(b) the delivery to Administrative Agent of certified copies of each PS Purchase Document and all material agreements, documents and instruments entered into by and between Pure Solutions and Cisco Systems, Inc.;
(c) the delivery to Administrative Agent of a payoff letter from each lender to Pure Solutions in form and substance reasonably satisfactory to the Administrative Agent, together with such UCC-3 termination statements, releases of mortgage Liens and other instruments, documents and/or agreements necessary or appropriate to terminate any Liens in favor of such lenders securing indebtedness which is to be paid off on the date hereof as the Administrative Agent may reasonably request, duly executed and in form and substance reasonably satisfactory to the Administrative Agent;
(d) the delivery to Administrative Agent of a copy of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior fully executed consent and amendment to the undertaking First Lien Debt Documents regarding the substance of any such soil teststhis Amendment (which shall include, without limitation, the First Lien Lenders’ consent to the transactions contemplated by Section 3 of this Amendment), in form and substance reasonably acceptable to the event of termination Administrative Agent, and evidence that all conditions contained in such consent and amendment (other than the effectiveness of this agreement. If Amendment) have been satisfied;
(e) the agreement is terminated all environmental testing and reports will be provided delivery to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out Administrative Agent of a fully-executed original of the testing and; 4 SCHEDULE "A" Page Two To be read with Consent, Amendment to and form a part Reaffirmation of this Intercreditor and Lien Subordination Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) executed by the Administrative Agent, the Collateral Agent, the Lenders, the First Lien Agent, the Borrowers and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------certain other Credit Parties;
(2f) receiving the approval delivery to the Administrative Agent of a certified copy of the resolutions of the Board of Directors of its parent companyeach Credit Party that is a party hereto approving the execution, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to delivery and performance of this Agreement, which approval may be withheld in Amendment and the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendortransactions contemplated hereby;
(4g) satisfying itself that the zoning truth and accuracy of the property will permit the use of the property by the Purchaser for its intended purposes;representations and warranties contained in Section 6 hereof; and
(5h) satisfying itself that a building permit with respect to no Default or Event of Default under the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretionCredit Agreement, as to (1) the status of all capital leviesamended hereby, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidoccurred and be continuing.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Comsys It Partners Inc)
Conditions. The Purchaser's obligation This Agreement shall become effective as of the first date (the “Effective Date”) when each of the following conditions shall have been satisfied:
(a) the Administrative Agent (or its counsel) shall have received from each Loan Party, the Majority Lenders under the Initial Revolving Facility (determined before giving effect to the replacement of any Non-Consenting Lenders), all of the Revolving Facility Lenders under the Initial Revolving Facility (after giving effect to the replacement of any Non-Consenting Lenders), the L/C Issuers, and the Administrative Agent (i) a counterpart of this Agreement is conditional for forty-five signed on behalf of such party or (45ii) business days from acceptance written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of this agreement upon the PurchaserAgreement) that such party has signed a counterpart of this Agreement;
(1b) satisfying itself the Administrative Agent and each Lender (that makes a request in its sole and unfettered discretion, of accordance with the environmental & soil conditions of the property terms below) shall have received at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing least three (3) Business Days prior to the undertaking Effective Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, to the extent such documentation and other information has been requested by the Administrative Agent or such Lender not less than five (5) Business Days prior to the Effective Date;
(c) the representations and warranties set forth in Section 4 above shall be true and correct as of the Effective Date;
(d) the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, dated the Effective Date and confirming the accuracy of the representations and warranties set forth in Section 4 above;
(e) the Administrative Agent shall have received customary officer’s certificates consistent with those delivered on the Closing Date and dated the Effective Date; provided that, in lieu of attaching organizational documents and/or evidence of incumbency of the officers of any Loan Party to such soil testscertificates, such certificates may certify that (i) since the Closing Date or such later date referred to in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided such certificates, there have been no changes to the Vendor at an equal shared cost. The deposit shall secure organizational documents of such Loan Party and (ii) no changes have been made to the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out incumbency certificate of the testing officers of such Loan Party delivered on the Closing Date or such later date referred to in such certificates;
(i) all Obligations of the Borrower with respect to the Initial Revolving Facility owing to any Non-Consenting Lender being replaced or terminated pursuant to Section 3 shall be paid in full to such Non-Consenting Lender concurrently with the assignment or termination described in Section 3 and (ii) each Replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest and fees thereon; and; 4 SCHEDULE "A" Page Two To be read with
(g) the Administrative Agent shall have received all fees payable thereto, to the Lead Arrangers or to any Lender on or prior to the Effective Date and, to the extent invoiced, all other amounts due and form a part of payable pursuant to this Agreement on or prior to the Effective Date, including, to the extent invoiced at least three (3) Business Days prior to the Effective Date, reimbursement or payment of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. all reasonable and documented out-of-pocket expenses (Purchaser) including reasonable fees, charges and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval disbursements of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇▇ Company Inc., & ▇▇▇▇▇▇▇▇ LLP) required to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities reimbursed or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of Loan Parties under this Agreement or waived by under the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidExisting Credit Agreement.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional On the terms and subject to the conditions contained herein, the Borrower may request that one or more L/C Issuers Issueeach LC Facility Lender Issue (or cause the Issuance) on a pro rata basis in accordance with such LC Facility Lender’s Commitment Percentage of the Aggregate LC Facility Commitment, in accordance with such L/C Issuers’LC Facility Lender’s (or, if the LC Facility Lender has caused any other Person to Issue a Letter of Credit, such Person’s) usual and customary business practices and for forty-five the account of the applicable Credit Parties, Letters of Credit (45denominated in Dollars) business from time to time on any Business Day during the period from the Closing Date through the earlier of (x) the Revolving Termination Date and (y) seven (7) days from acceptance prior to the date specified in clause (a) of this agreement the definition of Revolving Termination Date; provided, however, that no L/C IssuerLC Facility Lender shall Issue (or cause the Issuance of) any Letter of Credit upon the Purchaseroccurrence of any of the following or, if after giving effect to such Issuance:
(A) (i) Availability would be less than zero or, (ii) an amount equal to 105% of the Letter of Credit Obligations for all Letters of Credit would exceed $150,000,000 (the “L/C Sublimit”);the Aggregate LC Facility Commitment then in effect or (iii) with respect to Letters of Credit Issued by any LC Facility Lender after the Effective Date, an amount equal to 105% of the Letter of Credit Obligations for all Letters of Credit Issued by such Issuer would exceed such LC Facility Lender’s LC Facility Commitment;
(1B) satisfying itself in its sole and unfettered discretionthe expiration date of such Letter of Credit (i) is not a Business Day, (ii) is more than one year after the date of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing Issuance thereof or (iii) is later than seven (7) days prior to the undertaking date specified in clause (a) of the definition of Revolving Termination Date; provided, however, that any Letter of Credit with a term not exceeding one year may provide for its renewal for additional periods not exceeding one year as long as (x) such L/C IssuerLC Facility Lender has the option to prevent such renewal before the expiration of such term by providing notice of non-renewal at least 30 days prior to the then-applicable expiration date and (y) neither such L/C IssuerLC Facility Lender nor the Borrower shall permit any such renewal to extend such expiration date beyond the date set forth in clause (iii) above; or
(C) (i) any fee due in connection with, and on or prior to, such Issuance has not been paid, (ii) such Letter of Credit is requested to be Issued in a form that is not reasonably acceptable to such L/C IssuerLC Facility Lender or (iii) such L/C IssuerLC Facility Lender shall not have received, each in form and substance reasonably acceptable to it and duly executed by the applicable Credit Parties, the documents that such L/C IssuerLC Facility Lender (or, if the LC Facility Lender has caused any other Person to Issue a Letter of Credit, documents substantially similar to the documents that such Person) generally uses in the Ordinary Course of Business for the Issuance of letters of credit of the type of such Letter of Credit (collectively, the “L/C Reimbursement Agreement”). Furthermore, GE Capital as an L/C Issuer may elect only to Issue Letters of Credit in its own name and may only Issue Letters of Credit to the extent permitted by Requirements of Law, and such Letters of Credit may not be accepted by certain beneficiaries such as insurance companies. For each Issuance, the applicable L/C IssuerLC Facility Lender may, but shall not be required to, determine that, or take notice whether, the conditions precedent set forth in Section 2.2 have been satisfied or waived in connection with the Issuance of any Letter of Credit; provided, however, that no Letter of Credit shall be Issued during the period starting on the first Business Day after the receipt by such soil tests, in the event L/C IssuerLC Facility Lender of termination of this agreement. If the agreement is terminated all environmental testing and reports will be notice from Agent (provided to the Vendor at an equal shared cost. The deposit shall secure the that Agent has no affirmative obligation to repair any damages caused by provide such tests. The Purchaser indemnifies notice) or the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event Required RevolvingLC Facility Lenders that any condition precedent contained herein has in Section 2.2 is not been fully satisfied and ending on the date all such conditions are satisfied or before duly waived. Notwithstanding anything else to the forty fifth (45th) business day from the acceptance of this Agreement contrary herein, if any Lender is a Non-Funding Lender or waived by the PurchaserImpacted Lender, this agreement shall come to an end and the deposit and all interest earned thereon no L/C Issuer shall be returned obligated to Issue any Letter of Credit unless (w) the Purchaser without deductionNon-Funding Lender or Impacted Lender has been replaced in accordance with Section 9.9 or 9.22, and (x) the Purchaser shall Letter of Credit Obligations of such Non-Funding Lender or Impacted Lender have no further obligations been cash collateralized, (y) the Revolving Loan Commitments of the other Lenders have been increased by an amount sufficient to satisfy Agent that all future Letter of Credit Obligations will be covered by all Revolving Lenders that are not Non-Funding Lenders or Impacted Lenders or (z) the Vendor under this Agreement except as aforesaidLetter of Credit Obligations of such Non-Funding Lender or Impacted Lender have been reallocated to other Revolving Lenders in a manner consistent with subsection 1.11(e)(ii).
Appears in 1 contract
Sources: Credit Agreement (Radioshack Corp)
Conditions. The Purchaser's obligation under This First Amendment shall be effective once the Stock Sale Closing Date has occurred, the Effective Time has occurred, and each of the following have been delivered to Lender:
(a) this Agreement is conditional for forty-five (45) business days from acceptance First Amendment executed by Existing Borrowers, Buyer, and Lender and dated as of this agreement upon the PurchaserFirst Amendment Closing Date;
(1b) satisfying itself in its sole the Note executed by New CYMRI and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------TEI;
(2c) receiving the approval Master Amendment to Deeds of Trust, Mortgages and Security Instruments executed by New CYMRI, TEI and Lender;
(d) the Board Partial Release of Directors Amended and Restated Security Agreement executed by Lender;
(e) the Partial Release of its parent companyStock Pledge Agreement executed by Lender;
(f) the Ratification of Pledge of Certificates of Deposit executed by F.M. Cantrell, Russ Jr. and Lender;
(g) the opinion of Hirsch & ▇▇▇▇▇▇ ▇▇▇ Company Inc.▇▇▇, to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, ▇▇unsel to the lot linesBorrower, with all municipal services in form and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect s▇▇▇▇▇▇ce acceptable to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, Lender in its sole discretion;
(h) UCC financing statements, amendments, releases and terminations in favor of Lender (as secured party), in form and substance acceptable to Lender, reflecting the changes effected by the Merger and the Stock Sale;
(i) evidence satisfactory to Lender that the Merger Agreement and Stock Sale have been consummated and all conditions therein have been satisfied, unless waived by Lender in writing;
(j) a certificate issued by the secretary or an assistant secretary of CYMRI, New CYMRI and TEI certifying as to the incumbency of all officers of CYMRI, New CYMRI and TEI who are authorized to execute Loan Documents on behalf of such CYMRI, New CYMRI and TEI, respectively, together with specimen signatures of each such officer;
(k) copies of the Certificate of Formation of New CYMRI and the Certificate of Incorporation of TEI and CYMRI and, in each case, all amendments thereto, and copies of the bylaws and all amendments thereto of New CYMRI, TEI and CYMRI, accompanied by a certificate issued by the secretary or an assistant secretary of New CYMRI, TEI and CYMRI, certifying to the effect that each such copy is correct and complete;
(l) copies of corporate resolutions duly adopted by the board of directors of CYMRI, New CYMRI, and TEI, as to (1) applicable, approving and authorizing the status of all capital leviesStock Purchase Agreement and Stock Sale, sewer impost feesthe Merger Agreement and the Merger, local improvement rates, special assessments this First Amendment and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed constructiontransactions contemplated herein, and the determination amendments to the other Loan Documents, each accompanied by certificates of the costs thereof. Each secretary or an assistant secretary of CYMRI, New CYMRI, and TEI, as applicable, to the effect that such copies are true and correct copies of resolutions duly adopted at a meeting or by written consent of the foregoing conditions is for board of directors of CYMRI, New CYMRI and TEI and that such resolutions constitute all the sole benefit resolutions adopted with respect to such transactions, and that they have not been amended, modified, or revoked in any respect, and are in full force and effect as of the Purchaser date of such certificate;
(m) certificates dated as of a recent date from the Secretary of State or other appropriate Governmental Authority evidencing the existence and may be waived good standing of New CYMRI, TEI and Tradestar in each entity's respective jurisdiction of organization and certificates of authority to do business in any other jurisdictions where such entity does business;
(n) results of searches of the UCC Records of the Texas Secretary of State from a source acceptable to Lender and reflecting no Liens against any of the Collateral as to which perfection of a Lien is accomplished by the Purchaser filing of a financing statement other than in its sole discretion favor of the Lender and Permitted Liens;
(o) receipt of payment in whole or in part by Notice immediately available funds necessary to reduce the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come outstanding Loans to an end and amount not to exceed $6,500,000 as of the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except date hereof; and
(p) such other documents as aforesaidLender may reasonably request.
Appears in 1 contract
Conditions. The PurchaserCompany's obligation under this Agreement is conditional for forty-five right to exercise its election to purchase Securities on a Redemption Date through the delivery of a form of Redemption Consideration other than cash shall be conditioned upon:
(45A) business days from acceptance the Company's not having given in the notice of this agreement upon redemption an election to pay entirely in cash and its giving of timely notice of election to purchase all or a specified percentage of the PurchaserSecurities with a form of Redemption Consideration other than cash;
(1B) satisfying itself the registration of BSkyB Ordinary Shares under the Securities Act, or the Exchange Act, in its sole each case, if required, and unfettered discretionany necessary qualification or registration under applicable state securities laws or the availability of an exemption from such qualification and registration;
(C) the listing of such BSkyB Ordinary Shares on the London Stock Exchange, if such are not so listed;
(D) the receipt by the Trustee of (a) an Officers' Certificate to the effect that (x) the terms of the environmental & soil conditions issuance of such BSkyB Ordinary Shares are in conformity with this Indenture, (y) the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees BSkyB Ordinary Shares to reinstate the property to its original condition as existing be delivered on or prior to the undertaking of any Redemption Date will be deposited with the Transfer Agent, and (z) (i) if such soil testsBSkyB Ordinary Shares are newly issued or are treasury shares, in such shares have been duly authorized and, when such BSkyB Ordinary Shares have been issued and delivered pursuant to the event of termination terms of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by Indenture in payment of such tests. The Purchaser indemnifies the Vendor for any liability that may arise out specified percentage of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies Redemption Price in respect of the Property Securities, such BSkyB Ordinary Shares will be duly and validly issued, fully paid and nonassessable, free of any preemptive rights and free and clear of any lien or adverse claim or (ii) if such BSkyB Ordinary Shares are not newly issued or treasury shares, such shares will be free and clear of any lien or adverse claim stating that conditions (A), (B) and (3C) whether top soil must be removed from or added above and the condition set forth in the second succeeding sentence have been satisfied; and (b) an Opinion of Counsel to the Property in order to permit the Purchaser's proposed constructioneffect of (x) and (z) (as applicable) above and, stating that conditions (B) and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not (C) above have been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaidsatisfied.
Appears in 1 contract
Sources: Indenture (Feg Holdings Inc)
Conditions. The Purchaserobligations of Adecco and Adecco, Inc. to Olsten with respect to Adecco, Inc.'s obligation commitment to make the Term Loan shall be subject to the satisfaction of the following conditions prior to the disbursement of funds:
(i) No event shall have occurred and be continuing that would constitute a default, or with the passage of time or the giving of notice or both, would constitute a default under this Agreement is conditional for forty-five the Promissory Note or would entitle Adecco, Inc. to accelerate a balance due, if any, under the Promissory Note;
(45ii) business days On or prior to the Incurrence Date, Olsten shall have issued and delivered to Adecco, Inc., and Adecco, Inc. shall have received from acceptance Olsten, the Promissory Note;
(iii) On or prior to the Incurrence Date, Olsten and OHS shall have entered into the Contribution Agreement;
(iv) On the Incurrence Date, Adecco shall have received a certificate, dated the Incurrence Date and signed by each of this agreement upon the Purchaser;Chief Executive Officer and the Chief Financial Officer of Olsten, certifying the following:
(1) satisfying itself in Olsten has all requisite corporate or other power and authority to issue, execute, sell and deliver the Promissory Note and to perform its sole and unfettered discretion, of the environmental & soil conditions of the property at its own expense. If said testing requires any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition as existing prior to the undertaking of any such soil tests, in the event of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided to the Vendor at an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------obligations thereunder;
(2) receiving The Promissory Note (x) has been duly and validly authorized by Olsten for issuance and delivery to Adecco, Inc. on the approval Incurrence Date, (y) has been duly executed and delivered by Olsten and (z) is the legal, valid and binding obligation of the Board of Directors of Olsten, enforceable against Olsten in accordance with its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directors.terms;
(3) satisfying itself that The issuance of the property is fully serviced, to Promissory Note and the lot lines, with all municipal services and other installations required for public utilities incurrence of the Term Loan will not (x) violate Olsten's charter or pursuant to any subdivision bylaws or other agreementorganizational documents, that same have been fully paid for and none will be charged as local improvements(y) result in the default in the performance of any bond, that same are sufficient for the proposed use debenture, note, indenture, mortgage, deed of the property trust or other agreement or instrument to which it is a party or by the Purchaserwhich it is bound or to which any of its properties is subject or (z) violate any local, and that all municipal leviesstate, imposts and permit fees in respect thereof have been paid by the Vendor;federal or foreign law, statute, ordinance, rule, regulation, requirement, judgment or court decree; and
(4) satisfying itself that the zoning of the property will permit the use of the property by the Purchaser for its intended purposes;The conditions set forth in Sections 5.19(c)(i)-(iii) hereof have been satisfied; and
(5v) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures therefor.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser Adecco shall have no further obligations to received copies of such documents and papers as it may reasonably request in connection with the Vendor under this Agreement except as aforesaidTerm Loan.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement is conditional for forty-five (45) business days from acceptance 2.1 Before Clause 4 of this agreement upon Supplemental Agreement shall take effect, the Purchaser;Borrower shall deliver or cause to be delivered to or to the order of the Agent the following documents and evidence:-
2.1.1 A certificate from a duly authorised officer of each of the Security Parties
(1i) satisfying itself 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 its sole 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 unfettered discretionneither amended nor revoked, of any which have been amended or modified and (ii) setting out the environmental & soil conditions names of the property at its own expense. If said testing requires 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 disturbance of soilsdirectors' or shareholders' meetings) approving, then and authorising or ratifying the Purchaser agrees to reinstate execution of, this Supplemental Agreement, the property to its original condition as existing prior Confirmation Deed, the Confirmation Letter and the Mortgage Addenda.
2.1.3 The notarially attested and legalised (in either case to the undertaking extent required by applicable law) power of any such soil testsattorney of each of the Security Parties under which this Supplemental Agreement, in the event Confirmation Deed, the Confirmation Letter and the Mortgage Addenda is to be executed by that Security Party.
2.1.4 Evidence of termination of this agreement. If the agreement is terminated all environmental testing and reports will be provided payment to the Vendor at Agent of an equal shared cost. The deposit shall secure the obligation to repair any damages caused by such tests. The Purchaser indemnifies the Vendor for any liability that may arise out amendment fee of nought point three five per cent (0.35%) of the testing and; 4 SCHEDULE "A" Page Two To Maximum Facility Amount to be read with and form a part allocated among the Banks in proportion to their Proportionate Shares for the account of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval each of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., Banks who have consented to this the Request.
2.1.5 This Supplemental Agreement, which approval may be withheld in the sole discretion of such Board of Directors.
(3) satisfying itself that Confirmation Deed, the property is fully serviced, to Confirmation Letter and the lot lines, Mortgage Addenda duly executed by all parties thereto together with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use evidence of the property by the Purchaser, and that all municipal levies, imposts and permit fees in respect thereof have been paid by the Vendor;
(4) satisfying itself that the zoning registration of the property will permit Mortgage Addenda at the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit with respect to the Purchaser's proposed construction on the property will be available upon compliance with normal procedures thereforPanamanian Ship Registry.
(6) satisfying itself, in its sole discretion, as to (1) the status of all capital levies, sewer impost fees, local improvement rates, special assessments and other capital or similar charges against the Property, (2) the status of all development charges and parkland dedication levies in respect of the Property and (3) whether top soil must be removed from or added to the Property in order to permit the Purchaser's proposed construction, and the determination of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendor. In the event that any condition contained herein has not been fully satisfied on or before the forty fifth (45th) business day from the acceptance of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser shall have no further obligations to the Vendor under this Agreement except as aforesaid.
Appears in 1 contract
Conditions. The Purchaser's obligation under this Agreement If Lessee elects to conduct a substitution such that another unencumbered property location or locations (each, a “Substitute Property”) is conditional substituted for forty-five a Property being released (45) business days from acceptance of this agreement upon each, a “Replaced Property”), the Purchaser;substitution shall comply with the following:
(1a) satisfying itself Lessor shall have received at least thirty (30) days’ prior written notice requesting the substitution and identifying the Substitute Property and Replaced Property.
(b) The Substitute Property (i) shall be a Permitted Facility, in generally good condition and repair, ordinary wear and tear excepted, taking into account the age and all existing and prior uses of such Substitute Property; and (ii) shall be made subject to this Lease with no decline in Base Annual Rental or any other Rental due hereunder.
(c) Lessor shall have received a current appraisal performed by an MAI Appraiser (in form and substance reasonably satisfactory to Lessor) of the Substitute Property prepared within thirty (30) days prior to the release and substitution date (the “Substitution Date”) showing an appraised value equal to or greater than the appraised value of the Replaced Property as of the Substitution Date and as of the Effective Date.
(d) If the Replaced Property is part of a Securitization, Lessor shall have received confirmation from the rating agency (or agencies, if applicable) to the effect that such release and substitution will not result in a withdrawal, qualification or downgrade of the respective ratings in effect immediately prior to such release and substitution for the securities issued in connection with the Securitization that are then outstanding. Lessor shall use commercially reasonable efforts to obtain the confirmation required by this clause (d).
(e) Lessor shall have evaluated the unit-level financial statements of the Substitute Property for the immediately preceding twelve (12) month period, and in its sole and unfettered but reasonable discretion, concluded that the unit-level financial results of the environmental & soil Substitute Property are acceptable to Lessor to qualify the property as a Substitute Property.
(f) No Event of Default shall have occurred and be continuing and Lessee shall be in compliance in all material respects with all terms and conditions set forth in this Lease on Lessee’s part to be observed or performed. Lessor shall have received a certificate from Lessee confirming the foregoing, stating that the representations and warranties of Lessee contained in this Lease are true and correct in all material respects on and as of the property at Substitution Date (or if untrue, providing details regarding the same), with respect to Lessee, the Properties and the Substitute Property and containing any other representations and warranties with respect to Lessee, the Properties and the Substitute Property as Lessor may reasonably require. Lessor may object in its own expense. If said testing requires reasonable discretion to any disturbance of soils, then the Purchaser agrees to reinstate the property to its original condition material exceptions as existing prior to the undertaking representations and warranties set forth in Lessee’s certificate. 4851-8930-3408.5 STORE / Ampco Master Lease Agreement 4 Properties in PA and IN File No.: 7210/02-637
(g) Lessor shall have received a preliminary title report and irrevocable commitment to insure title by means of any such soil testsan ALTA extended coverage owner’s policy and lender’s policy of title insurance, as applicable (or their equivalent in the event of termination of this agreement. If such forms are not issued in the agreement jurisdiction where the Substitute Property is terminated all environmental testing located) for the Substitute Property issued by a title company selected by Lessor and reports will be provided committing to insure Lessor’s good and marketable title to the Vendor at an equal shared costSubstitute Property and the priority of any lien of a mortgagee of Lessor encumbering the Substitute Property (a “Mortgagee”), subject only to permitted exceptions reasonably acceptable to Lessor and Mortgagee and containing such coverage and endorsements as Lessor and Mortgagee may reasonably require. The deposit Lessor also shall secure have received a title policy endorsement or a letter from the obligation to repair any damages caused by such tests. The Purchaser indemnifies appropriate taxing authority stating that the Vendor for any liability that may arise out of the testing and; 4 SCHEDULE "A" Page Two To be read with and form Substitute Property constitutes a part of this Agreement of Purchase on Sale between AMRAM'S DISTRIBUTING LTD. (Purchaser) and ------------------------------------------------------------ METRUS PROPERTIES LTD. (Vendor) dated ------------------------------------------------------------ NOVEMBER 25, 1997 ------------------------------------------------------------ -----------------------------------------------------------------------------
(2) receiving the approval of the Board of Directors of its parent company, Russ ▇▇▇▇▇▇ ▇▇▇ Company Inc., to this Agreement, which approval may be withheld in the sole discretion of such Board of Directorsseparate tax lot.
(3h) satisfying itself that the property is fully serviced, to the lot lines, with all municipal services and other installations required for public utilities or pursuant to any subdivision or other agreement, that same Lessor shall have been fully paid for and none will be charged as local improvements, that same are sufficient for the proposed use received a current ALTA survey of the property by Substitute Property, the Purchaserform of which shall be reasonably acceptable to Lessor and Mortgagee, and that all municipal leviestheir respective successors and assigns, imposts and permit fees sufficient to cause the standard survey exceptions set forth in respect thereof have been paid by the Vendor;title policies referenced above to be deleted.
(4i) satisfying itself that Lessor shall have inspected and approved the zoning Substitute Property utilizing, among other things, its property diligence and underwriting criteria, including without limitation, (x) completion of the a property will permit the use of the property by the Purchaser for its intended purposes;
(5) satisfying itself that a building permit condition report with respect to the Purchaser's proposed construction on Substitute Property concluding that the property will Substitute Property and its use comply in all material respects with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and that the Substitute Property is in generally good condition and repair and free of damage or waste; and (y) completion of such environmental due diligence of the Substitute Property as Lessor deems necessary or advisable in its reasonable discretion, including but not limited to, receiving an environmental report and/or an environmental insurance policy with respect to the Substitute Property (if deemed necessary or appropriate in Lessor’s reasonable discretion); provided, however, that any vendor conducting an environmental inspection must be available upon compliance a reputable vendor with normal procedures thereforappropriate credentials and insurance; and provided, further, that notwithstanding anything contained herein to the contrary, if Lessee fails or refuses to permit any additional subsurface environmental testing or investigation of the Substitute Property, Lessee shall be deemed to have elected to withdraw its request for a substitution.
(6j) satisfying itselfLessee shall have paid for all of Lessor’s reasonable out-of-pocket Costs incurred with respect to such proposed substitution, including, without limitation, Lessor’s third party inspection costs and expenses with respect to the Substitute Property and any costs associated with the conveyance of the Replaced Property by Lessor to Lessee. Lessee shall be solely responsible for the payment of all Costs resulting from such proposed substitution, regardless of whether such substitution is consummated, including, without limitation, the cost of title insurance and endorsements for Lessor, survey charges, stamp taxes, mortgage taxes, transfer fees, escrow and recording fees, the cost of environmental due diligence undertaken pursuant to this Section 20.02, including, without limitation, the cost of environmental insurance (if necessary or appropriate), the cost of the appraisal required by Section 20.02(c), any additional taxes imposed on Lessor as a result of such substitution, any reasonable costs and expenses of the Mortgagee and the rating agency (or agencies), if applicable, incurred in 4851-8930-3408.5 STORE / Ampco Master Lease Agreement 4 Properties in PA and IN File No.: 7210/02-637 connection with the substitution and the reasonable attorneys’ fees and expenses of counsel to Lessee and Lessor.
(k) Lessor shall have received quarterly and annual operating statements, in its sole discretionsubstantially the same form as provided with respect to the Properties, as to (1) for the status of all capital levies, sewer impost fees, local improvement rates, special assessments Substitute Property for the most current completed quarter and other capital or similar charges against fiscal year and comparable operating statements for the Replaced Property, (2) each certified by Lessee to Lessor as being true and correct in all material respects and a certificate from Lessee certifying that, to Lessee’s knowledge, there has been no material adverse change in the status of all development charges and parkland dedication levies in respect financial condition of the Substitute Property and (3) whether top soil must be removed from or added to since the Property in order to permit the Purchaser's proposed construction, and the determination date of the costs thereof. Each of the foregoing conditions is for the sole benefit of the Purchaser and may be waived by the Purchaser in its sole discretion in whole or in part by Notice to the Vendorsuch operating statements. In the event that any condition contained herein the Substitute Property has recently opened for business at the time of substitution so that a current operating statement is not been fully satisfied on or before the forty fifth available, Lessee shall deliver a pro forma operating statement reasonably acceptable to Lessor for such Substitute Property.
(45thl) business day from the acceptance Lessee shall have delivered to Lessor an estoppel certificate in accordance with Section 9.05 of this Agreement or waived by the Purchaser, this agreement shall come to an end and the deposit and all interest earned thereon shall be returned to the Purchaser without deduction, and the Purchaser Lease.
(m) Mortgagee shall have no further obligations to the Vendor under this Agreement except as aforesaidreceived from Lessee subordination agreements in form reasonably approved by Mortgagee.
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