Conditions Precedent to Advances At the time of the making of the Term Loan hereunder on the Closing Date, all obligations of Borrower hereunder incurred prior to any such Advance (including, without limitation, Borrower’s obligations to reimburse the reasonable fees and expenses of counsel to the Lender and any fees and expenses payable to the Lender as previously agreed with Borrower), shall have been paid in full, and the Lender shall have received the following, in form and substance reasonably satisfactory in all respects to the Lender:
(a) The duly executed counterparts of this Agreement;
(b) The duly executed Term Note evidencing the Term Loan Commitment;
(c) Duly executed Certificate of Borrower in substantially the form which is reasonable acceptable to the Lender and appropriately completed;
(d) Duly executed Certificates of the Secretary or Assistant Secretary of each of the Credit Parties attaching and certifying copies of the resolutions of the boards of directors of the Credit Parties, authorizing as applicable the execution, delivery and performance of the Credit Documents;
(e) Duly executed Certificates of the Secretary or an Assistant Secretary of each of the Credit Parties certifying (i) the name, title and true signature of each officer of such entities executing the Credit Documents, and (ii) the bylaws or comparable governing documents of such entities;
(f) Certified copies of the certificate or articles of incorporation of each Credit Party certified by the Secretary of State or the Secretary or Assistant Secretary of such Credit Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or organization of such Credit Party;
(g) Copies of all documents and instruments, including all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Credit Parties, in connection with the execution, delivery, performance, validity and enforceability of the Credit Documents and the other documents to be executed and delivered hereunder, and such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired;
(h) Certified copies of the Intercompany Credit Documents, to the extent that they exist;
(i) Certified copies of indentures, credit agreements, leases, capital leases, instruments, and other documents evidencing or securing Indebtedness of any Consolidated Company described on Schedule 8.1(b), other than with respect to any such Indebtedness outstanding with the Lender, in any single case greater than $100,000;
(j) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, and other compensation and employee benefit plans;
(k) Certificates, reports, environmental audits and investigations, and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(l) Certificates, reports and other information as the Lender may reasonably request from any Consolidated Company in order to satisfy the Lender as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(m) A summary, set forth in format and detail reasonably acceptable to the Lender, as the Lender may reasonably request, of the types and amounts of insurance (property and liability) maintained by the Consolidated Companies;
(n) The duly executed favorable opinion of in-house legal counsel to the Credit Parties, substantially in the form reasonably acceptable to Lender addressed to the Lender;
(o) Financial Statements of the Borrower, audited on a consolidated basis for the fiscal years ended on December 31, 2008, 2009 and 2010;
(p) Financial Statements of the Borrower, internally prepared and unaudited, on a consolidated basis for the three (3) month period ending September 30, 2011; and
(q) Evidence of repayment in full of the Uncommitted Line Facility and repayment of not less than $50,000,000 in principal of the SunTrust Loan. In addition to the foregoing, the following conditions shall have been satisfied or shall exist, all to the reasonable satisfaction of the Lender, as of the time the initial Loans are made hereunder:
(r) The Loan to be made on the Closing Date and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority;
(s) All corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Lender; and
(t) The status of all pending and threatened litigation (including products liability and patent claims) which might result in a Materially Adverse Effect, including a description of any damages sought and the claims constituting the basis therefor, shall have been reported in writing to the Lender, and the Lender shall be satisfied with such status.
(u) There shall then exist no Default or Event of Default;
(v) All representations and warranties by Borrower contained herein shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Loans (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by transactions permitted under this Agreement);
(w) Since the date of the most recent financial statements of the Borrower described in Section 6.3 hereof, there shall have been no change which has had or could reasonably be expected to have a Materially Adverse Effect;
(x) There shall be no action or proceeding instituted or pending before any court or other governmental authority or, to the knowledge of Borrower, threatened (i) which reasonably could be expected to have a Materially Adverse Effect, or (ii) seeking to prohibit or restrict one or more Credit Party’s ownership or operation of any portion of its business or assets, or to compel one or more Credit Parties to dispose of or hold separate all or any portion of its businesses or assets, where said action if successful would have a Materially Adverse Effect;
(y) The Loans to be made and the use of proceeds thereof shall not contravene, violate or conflict with, or involve the Lender in a violation of, any law, rule, injunction, or regulation, or determination of any court of law or other governmental authority applicable to Borrower; and
(z) The Lender shall have received such other documents or legal opinions as the Lender may reasonably request, all in form and substance reasonably satisfactory to the Lender.
Conditions Precedent to Obligation of Seller The obligation of Seller to consummate the transaction hereunder shall be subject to the fulfillment on or before the date of Closing of all of the following conditions, any or all of which may be waived by Seller in its sole discretion:
(a) Seller shall have received the Purchase Price as adjusted pursuant to and payable in the manner provided for in this Agreement.
(b) Purchaser shall have delivered to Seller all of the items required to be delivered to Seller pursuant to the terms of this Agreement, including but not limited to, those provided for in Section 4.3.
(c) All of the representations and warranties of Purchaser contained in this Agreement shall be true and correct in all material respects as of the date of Closing.
(d) Purchaser shall have performed and observed, in all material respects, all covenants and agreements of this Agreement to be performed and observed by Purchaser as of the date of Closing.
CONDITIONS PRECEDENT TO OBLIGATIONS OF DEVELOPER The obligations of Developer under this Agreement are conditioned upon the following:
Conditions Precedent to All Credit Events The obligation of each Lender to make Loans (including Loans made on the Initial Borrowing Date), and the obligation of each Issuing Lender to issue Letters of Credit (including Letters of Credit issued on the Initial Borrowing Date), is subject, at the time of each such Credit Event (except as hereinafter indicated), to the satisfaction of the following conditions:
Conditions Precedent to All Loans The obligation of the Banks to make any Committed Credit Loan to a Borrower, and/or the Swing Line Lender to make any Swing Line Loan hereunder to a Borrower (it being understood that any decision to make a Swing Line Loan to a Borrower shall be within the sole discretion of the Swing Line Lender), is subject to the following conditions:
(a) Either (i) the Operations Agent shall have received a Request for Committed Credit Loan from such Borrower as required by Section 2.04(a) hereof, or (ii) the Swing Line Lender shall have received a Request for Swing Line Loan from such Borrower as required by Section 3.03(a) hereof;
(b) The representations and warranties of such Borrower contained in Article VII hereof shall be true on and as of such date as if they had been made on such date (except to the extent that such representations and warranties expressly relate to an earlier date or are affected by the consummation of transactions permitted under this Agreement);
(c) Such Borrower shall be in compliance in all material respects with all of the terms and provisions set forth herein on its part to be observed or performed on or prior to such date;
(d) The making of the Loan shall not contravene any law, regulation, decree or order binding on such Borrower, the Operations Agent, the Swing Line Lender or the Banks; and
(e) After giving effect to the Loans to be made on such date to such Borrower, no Default with respect to such Borrower, shall have occurred and be continuing. Each Borrowing Request made by a Borrower shall constitute a representation and warranty by such Borrower to the Operations Agent and the Banks (in the case of a Request for Committed Credit Loan) and the Swing Line Lender (in the case of a Request for Swing Line Loan) that all of the conditions specified in this Section 6.02 have been satisfied in all material respects by such Borrower as of the date of the Loan.
Conditions Precedent to Obligations of Each Party The obligations of each Party to effect the Merger and otherwise consummate the Contemplated Transactions to be consummated at the Closing are subject to the satisfaction or, to the extent permitted by applicable Law, the written waiver by each of the Parties, at or prior to the Closing, of each of the following conditions:
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRING FUND 7.1. With respect to each Reorganization, the obligations of the Acquiring Entity, on behalf of the Acquiring Fund, to complete the transactions provided for herein shall be subject, at the Acquiring Fund's election, to the performance by the Target Fund of all of the obligations to be performed by it hereunder on or before the Closing Date and, in addition thereto, the following conditions:
(a) All representations and warranties of the Target Entity and the Target Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and, except as they may be affected by the transactions contemplated by this Agreement, as of the Closing Date, with the same force and effect as if made on and as of the Closing Date;
(b) The Target Entity, on behalf of the Target Fund, shall have delivered to the Acquiring Entity on the Closing Date (i) a statement of the Target Fund's Assets, together with a list of portfolio securities of the Target Fund, as of the Closing Date, certified by the Treasurer of the Target Entity, (ii) the Target Fund Shareholder Documentation, (iii) the AML Documentation and (iv) to the extent permitted by applicable law, all information pertaining to, or necessary or useful in the calculation or demonstration of, the investment performance of the Target Fund;
(c) The Target Entity shall have delivered to the Acquiring Entity on the Closing Date a certificate executed in its name by its President or Vice President and Treasurer, in form and substance satisfactory to the Acquiring Fund and dated as of the Closing Date, to the effect that the representations and warranties of or with respect to the Target Fund made in this Agreement are true and correct at and as of the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Acquiring Fund shall reasonably request;
(d) The Target Custodian and the Target Transfer Agent shall have delivered the certificates contemplated by Sections 3.2(b), 3.2(d) of this Agreement, respectively, and the Target Transfer Agent or the Target Fund's President or Vice President shall have delivered the certificate contemplated by Section 5.1(f) of this Agreement, each duly executed by an authorized officer of the Target Custodian, the Target Transfer Agent, the Target Fund's President or the Target Fund's Vice President, as applicable;
(e) The Target Entity and the Target Fund shall have performed all of the covenants and complied with all of the provisions required by this Agreement to be performed or complied with by the Target Entity and the Target Fund, on or before the Closing Date;
(f) The Target Fund and the Acquiring Fund shall have agreed on the number of full and fractional shares of each class of the Acquiring Fund set forth on Exhibit A hereto to be issued in connection with the Reorganization after such number has been calculated in accordance with Section 1.2 hereto;
(g) Unless the Target Fund has been advised by the Acquiring Fund that the Acquiring Fund will deliver an opinion of counsel that the Reorganization qualifies as a "reorganization" under Section 368(a)(1)(F) of the Code, the Target Fund shall have declared and paid a distribution or distributions prior to the Closing that, together with all previous distributions, shall have the effect of distributing to its shareholders (i) all of its investment company taxable income (determined without regard to any deductions for dividends paid) and all of its net realized capital gains, if any, for the period from the close of its last fiscal year to the Closing Time on the Closing Date; and (ii) any such undistributed investment company taxable income and net realized capital gains from any prior period to the extent not otherwise already distributed; and
Conditions Precedent to Obligations of the Purchaser The obligation of the Purchaser to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by the Purchaser in whole or in part to the extent permitted by Applicable Law):
(a) the representations and warranties of GM and Xxxxxx set forth in Article IV and Article V herein shall be true and correct as of the date of this Agreement and at and as of the Closing Date as though made on and as of the Closing Date (except for representations and warranties made as of a specified date, which need be true and correct only as of the specified date), except (other than in the case of Section 4.6 hereof) to the extent that all of the breaches of such representations and warranties collectively (without giving effect to any materiality or similar qualification) have not had and would not reasonably be expected to result in a Xxxxxx Material Adverse Effect that cannot be cured by the Outside Date and, in the case of representations and warranties of GM, has not had a material adverse impact on GM's ability to consummate the transactions contemplated by the GM Transaction Agreements; provided, however, that any and all actions required to be taken pursuant to Section 9.4 and the effects thereof on the representations and warranties of GM and Xxxxxx set forth in Article IV and Article V shall be ignored for purposes of this Section 10.2(a);
(b) GM and Xxxxxx shall have performed in all material respects all of their respective obligations hereunder to be performed by them on or prior to the Closing Date;
(c) GM and Xxxxxx shall have furnished the Purchaser with a certificate dated the Closing Date signed on its behalf by its Chairman, President or any Vice President to the effect that the conditions set forth in Sections 10.2(a) and (b) have been satisfied;
(d) certificates representing the Shares shall have been, or shall at the Closing be, validly delivered and transferred to the Purchaser, free and clear of any and all Encumbrances;
(e) GM shall have provided the Purchaser with an affidavit of non-foreign status that complies with Section 1445 of the Code (a "FIRPTA Affidavit");
(f) there shall not have occurred after the date hereof and be continuing any Xxxxxx Material Adverse Effect; provided, however, that any and all actions taken pursuant to Section 9.4 and the effects thereof shall be ignored for the purposes of this Section 10.2(f); and
(g) To the extent that the Ruling (i) includes statements or representations relating to facts that are or will be under the control of the Purchaser or any of its affiliates or (ii) is relevant to, or creates any actual or potential obligations of or limitations on, the Purchaser or any of its affiliates (or, for periods after the Split-Off Effective Time, Xxxxxx or its affiliates), such Ruling is reasonably satisfactory to the Purchaser, and the IRS has not notified GM or any party to this Agreement that the Ruling has been withdrawn, invalidated or modified in any manner that is or would reasonably be expected to be adverse to the Purchaser or any of its affiliates (or, for periods after the Split-Off Effective Time, Xxxxxx or its affiliates).
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIRED FUND The obligations of the Acquired Fund to consummate the transactions provided for herein shall be subject, at its election, to the performance by the Acquiring Fund of all the obligations to be performed by it hereunder on or before the Closing Date and, in addition thereto, the following conditions:
6.1 All representations and warranties of the Successor Company on behalf of the Acquiring Fund contained in this Agreement shall be true and correct in all material respects as of the date hereof and, except as they may be affected by the transactions contemplated by this Agreement, as of the Closing Date with the same force and effect as if made on and as of the Closing Date.
6.2 The Successor Company shall have delivered to the Predecessor Company on the Closing Date a certificate executed in its name by the Successor Company’s President or Vice President and its Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to the Predecessor Company, to the effect that the representations and warranties of the Successor Company made in this Agreement on behalf of the Acquiring Fund are true and correct at and as of the Closing Date, except as they may be affected by the transactions contemplated by this Agreement, and as to such other matters as the Predecessor Company reasonably requests.
6.3 The Successor Company (on behalf of and with respect to the Acquiring Fund) shall have entered into or adopted an investment management agreement with the investment advisers as set forth in Appendix B, an Administrative Services Agreement with Deutsche Investment Management Americas Inc. (“DIMA”), a distribution agreement with DWS Distributors Inc., plans of distribution pursuant to Rule 12b-1 under the 1940 Act, shareholder services plans, a transfer agency agreement with DWS Investments Service Company, and other agreements necessary for the Acquiring Fund’s operation as a series of an open-end investment company. The investment management agreement and each such agreement and plan shall have been approved by the Successor Board, including, to the extent required by law, those trustees who are not “interested persons” (as defined in the 0000 Xxx) of the Successor Company or DIMA and who do not have a material interest in such agreement or plan or any related agreement.
CONDITIONS PRECEDENT TO LOAN The obligations of Lender to make the Loan hereunder are subject to the satisfaction by Borrower of the following conditions:
