Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof: (a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date. (b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit). (c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date. (d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel. (e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter. (f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement. (g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects. (h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent. (i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary. (j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j). (k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion. (l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties. (m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto. (n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto). (o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise. (p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby. (q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements. (r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request. (s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date. (t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000. (u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent. (v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date. (w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 3 contracts
Sources: Loan and Security Agreement (Eddie Bauer Holdings, Inc.), Loan and Security Agreement (Eddie Bauer Holdings, Inc.), Loan and Security Agreement (Eddie Bauer Holdings, Inc.)
Conditions Precedent to Closing. Date This Agreement The Closing and the initial disbursement of the Loans shall become effective at such time as be subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofprecedent:
(a) This Agreement and the other The Loan Documents shall have been appropriately completed, duly executed by each party thereto the parties thereto, recorded where necessary and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in delivered to the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing DateAdministrative Agent.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on have occurred and be continuing.
(c) All representations and warranties contained herein shall be true and correct in all material respects at the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and All legal matters incident to the Lenders Loans shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Administrative Agent, and the Lenders, Borrowers agree to execute and their respective counseldeliver to the Administrative Agent such additional documents and certificates relating to the Loans as the Administrative Agent reasonably may request.
(e) The Borrower Financing statements in form and substance satisfactory to the Administrative Agent shall have paid all fees and expenses been properly filed in each office where necessary to perfect the security interest of the Agent and Administrative Agent, for the Attorney Costs incurred in connection with any ratable benefit of the Loan Documents Lenders, in the Collateral, termination statements shall have been filed with respect to any other financing statements covering all or any portion of the Collateral, except with respect to financing statements perfecting Liens permitted by this Agreement, and all taxes and fees with respect to such recording and filing shall have been paid by the transactions contemplated thereby, including, without limitation pursuant to the Fee LetterBorrowers.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent The Borrowers shall have received evidencedelivered to the Administrative Agent (1) certified copies of evidence of all corporate and company actions taken by the Borrowers and the Holding Company to authorize the execution and delivery of the Loan Documents, (2) certified copies of the articles or certificate of incorporation, bylaws, articles or certificate of organization and operating agreement of the Borrowers and the Holding Company, (3) a certificate of incumbency for the officers of the Borrowers and the Holding Company executing the Loan Documents, (4) a good standing certificate, dated not more than 30 days prior to the Closing Date, from the appropriate state official of any state in form, scopewhich the Borrowers or the Holding Company are incorporated, and substance, (5) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreementmay request.
(g) The Administrative Agent and the Lenders shall have had received (l) a Borrowing Base Certificate, (2) an opportunityAging Report, if they so choose(3) a contract status and backlog report relating to Eligible Receivables for the period ended on December 31, to examine the books of account 2006, in form and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been substance satisfactory to the Agent in all respectsLender, (4) the financial statements of the Company for the period ended on December 31, 2006, and (5) a pro forma Covenant Compliance Certificate, giving effect to the Transaction and the initial disbursement of the Loans, and certifying that no Default or Event of Default exists as of the Closing Date, nor would any Default or Event of Default occur after giving effect thereto.
(h) All proceedings taken The Administrative Agent shall have received a field examination report of the Collateral in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, form and substance acceptable to the Agentit.
(i) The Administrative Agent shall have received a copy of financing statement, judgment and tax lien searches reflecting that there are no Liens outstanding against the certificate Collateral other than those created or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date permitted by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and or the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its SecretaryDocuments.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 3 contracts
Sources: Loan and Security Agreement (Global Defense Technology & Systems, Inc.), Loan and Security Agreement (Global Defense Technology & Systems, Inc.), Loan and Security Agreement (Global Defense Technology & Systems, Inc.)
Conditions Precedent to Closing. Date This (a) Notwithstanding any other provision of this Agreement or any of the other Transaction Documents, the obligation of the Purchaser to consummate the Closing shall become effective be subject to the satisfaction, at such time as or prior to the Closing, of each of the following conditions precedent having been satisfied (any of which may be waived in a manner satisfactory to whole or in part by the Agent Purchaser):
(and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries i) There shall not be in form and substance satisfactory to force any order or decree, statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the Agent), in each case with the consent consummation of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:Closing.
(aii) This Each of the representations and warranties of the Company contained in this Agreement and the other Loan Transaction Documents have been executed to which the Company is a party shall be true and correct in all material respects as of the Closing (except that any such representation or warranty which speaks, by each party thereto its terms, as of a specific date or time other than the Closing, shall be true and correct as of such date), and each Loan Party shall have performed of the covenants and complied with all covenants, agreements and conditions contained herein and in of the other Loan Documents which are required Company to be performed or complied with by such Loan Party before the Company as of or on such prior to the Closing Dateshall have been performed or complied with by the Company in all material respects.
(iii) The Company shall have delivered the certificates and the other documents (if any) required to be delivered by it pursuant to Section 2(b)(ii) in accordance with the provisions thereof.
(b) All Notwithstanding any other provision of this Agreement or any of the other Transaction Documents, the obligation of the Company to consummate the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived in whole or in part by the Company):
(i) There shall not be in force any order or decree, statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the consummation of the Closing.
(ii) Each of the representations and warranties made hereunder of the Purchaser contained in this Agreement and in the other Loan Transaction Documents to which the Purchaser is a party shall be true and correct in all material respects as of the Closing Date (except that the representation and warranty of the Purchaser set forth in Section 3(h) hereof shall be true and correct in all respects as if made on of such date (both immediately prior todate), and after giving effect to, such extension each of credit).
(c) No Default the covenants and agreements of the Purchaser to be performed or Event complied with by the Purchaser as of Default shall exist on or prior to the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to performed or complied with by the Agent Purchaser in all material respects.
(hiii) All proceedings taken in connection with The Purchaser shall have paid the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance Purchase Price to the AgentCompany, by wire transfer of immediately available funds pursuant to payment instructions furnished by the Company to the Purchaser.
(iiv) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower Company shall have received the proceeds of documents required to be received by the Term Debt and the Agent shall have entered into an Intercreditor Agreement Company pursuant to Section 2(b)(ii) in accordance with the administrative agent for the Term Debt substantially in the form of Exhibit E heretoprovisions thereof.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 3 contracts
Sources: Purchase Agreement (Horizon Lines, Inc.), Purchase Agreement (Horizon Lines, Inc.), Purchase Agreement (Horizon Lines, Inc.)
Conditions Precedent to Closing. Date This Agreement The following shall become effective at such time as the following be conditions precedent having to the closing of the Loan and the advance of Loan proceeds:
(a) This Agreement, the Note, the Deed of Trust and the other Loan Documents shall have been satisfied properly executed and delivered to the Lender, the Deed of Trust shall be acknowledged and recorded in the appropriate public office or delivered to a manner representative of the title company for recording and payment shall have been made for all conveyancing and recording in connection with the settlement of the Loan, and for any transfer or documentary stamp taxes due under any federal, state or municipal law.
(b) The Lender shall have received a paid policy of title insurance on the current ALTA Form or a valid and enforceable commitment to issue the same, from a company satisfactory to the Agent Lender in the amount of the Loan and which may be endorsed or assigned to the successors and assigns of the Lender without additional cost, insuring the lien of the Deed of Trust to be a valid first lien on the Property, free and clear of all defects, exceptions and encumbrances except such as the Lender and its counsel shall have approved and containing affirmative insurance against mechanics liens and such other and further endorsements or coverages as Lender may reasonable require (the “Title Policy”).
(c) The Lender shall have received advice, in form and substance and from a source satisfactory to the Lender, to the effect that a search of the applicable public records discloses no conditional sales contracts, chattel mortgages, leases of personalty, financing statements or title retention agreements filed or recorded against the Property except such as the Lender shall have approved.
(d) The Lender shall have received all policies of insurance required by the terms hereof and by the other Loan Documents to be in effect from a company or companies and in form and amount satisfactory to the case Lender, including without limitation, flood insurance (in the amount of any documentsthe Loan or the maximum limit of coverage available on the Property, agreements whichever is less or other deliveriesevidence that flood insurance is not available or otherwise required with respect to the Property), such documentstogether with written evidence, agreements and deliveries shall be in form and substance satisfactory to the Agent)Lender, in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement that all fees and the other Loan Documents premiums due on account thereof have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and paid in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselfull.
(e) The Borrower Lender shall have paid all fees received and expenses approved an appraisal of the Agent and Property indicating that the Attorney Costs incurred in connection with any ratio of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant amount to the Fee Letter“as-is” appraised value of the Property does not exceed 75%.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent The Lender shall have received evidence, in form, scope, and substance, reasonably satisfactory to approved a property condition report of the Agent, of all insurance coverage as required by the AgreementProperty.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent Lender shall have received and approved a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each a current Survey of the Loan Parties, Land certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation Lender and to the "Effective Date" under title insurance company and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date any recorded subdivision plat of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation DateLand.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 3 contracts
Sources: Loan Agreement (Expensify, Inc.), Loan Agreement (Expensify, Inc.), Loan Agreement (Expensify, Inc.)
Conditions Precedent to Closing. Date This Agreement Subject to Section 3.02, the obligation of the Lenders hereunder shall become effective at such time as be subject to the following conditions precedent having been satisfied in a manner satisfactory to that the Facility Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed received on or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall requestfollowing, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Facility Agent:
(a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisalFund, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws Collateral Manager as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item Closing Date;
(Bc) below, (B) that attached thereto is a true and complete copy copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a resolution adopted by such Loan Party's Board Responsible Officer of Directors the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or in the case other action of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance its board of directors or members approving this Agreement and the other Loan Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such resolution representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has not been modified, rescinded or amended occurred and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovecontinuing, and (Dv) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(e) a certificate of another a Responsible Officer of such Loan Party's officers the Collateral Manager certifying (i) as to incumbency its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and signature of the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (includingexcept to the extent such representations and warranties expressly relate to any earlier date, without limitationin which case such representations and warranties shall be true and correct in all material respects as of such earlier date), any subordination (iv) no Default or other intercreditor provisions contained therein or applicable thereto).Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(of) The proper financing statements, under the UCC in all jurisdictions that the Facility Agent shall be reasonably satisfied with deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(g) copies of proper financing statements, if any, necessary to release all intercompany arrangements relating security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor);
(h) legal opinions (addressed to each of the Secured Parties) of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the acquisitionBorrower and the Collateral Manager as to corporate, ownership securities, bankruptcy and transfer of Inventory of a Loan Party or otherwise.commercial law and (ii) ▇▇▇▇▇ Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;
(pi) The evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Lenders Custodian as Securities Intermediary and shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain be in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.;
(qj) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of any liens arising from any such supply arrangements.the Collateral Agent have been paid in full;
(rk) There shall have been each of the Eligible Hedge Agreements, if any, duly executed and delivered to by the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganizationparties thereto, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, each be in full force and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.effect;
(tl) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by of a Responsible Officer of the Borrower, dated as of the Closing Date, to such effect. Execution and delivery the effect that, in the case of each item of Collateral pledged to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:
(i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction Borrower is the owner of such LenderCollateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens;
(ii) the decision of Borrower has acquired its ownership in such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and Collateral in good faith without reliance on the Agent or any other Lender as to the satisfaction notice of any condition precedent set forth adverse claim, except as described in this Section 10.1, and clause (i) above;
(iii) all the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral;
(m) such other opinions, instruments, certificates and documents sent to such from the Borrower as the Agents or any Lender for approval, consent or satisfaction were acceptable to such Lender.shall have reasonably requested; and
Appears in 3 contracts
Sources: Credit and Security Agreement (TCW Direct Lending VII LLC), Credit and Security Agreement (TCW Direct Lending VII LLC), Credit and Security Agreement (TCW Direct Lending VII LLC)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof The Company’s obligation to consummate the Closing is expressly conditioned upon the satisfaction or Section 13.2(a)(ii) hereofwaiver of the following:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(bi) All representations and warranties made hereunder and of the Public Parties set forth in the other Loan Documents Section 5.1 above shall be true and correct as of the Closing Date as if made on the Closing Date;
(ii) No event of default beyond any applicable notice and cure periods on the part of the Public Parties has occurred and is continuing hereunder as of the Closing Date;
(iii) The Title Company is irrevocably committed to issue the Title Policy and the Public Parties have delivered any documents reasonably requested by the Title Company in order for the Title Company to issue the Title Policy in accordance with the terms hereof;
(iv) The Public Parties have provided written confirmation to the Company that all funds allocated by the Public Parties pursuant to Section 1.3(d) above to perform all of the Public Parties’ respective obligations hereunder remain available in all respects as of the applicable Closing Date, to the extent not previously expended;
(v) There is no litigation pending or threatened with respect to the Project Site which (A) has resulted in a final order to the effect that the Project Site is subject to local zoning codes or building ordinances while such date (both immediately prior toProject Site is owned by the State, leased to the JDA, and after giving effect torented to the Company, (B) would have a material impact on the ability of the Company or the Public Parties to perform their obligations hereunder (other than litigation relating to development or permitting of the Project), or (C) otherwise materially and adversely affects the ability of the Parties to develop the Project (including, without limitation, permitting), as described herein; provided that with respect to this subsection (C) to the extent that (i) the State has assumed the responsibility and cost of defending any such extension litigation, (ii) the State is actively and vigorously defending any such pending litigation, and (iii) no injunctive relief has been granted by any court of creditcompetent jurisdiction as part of such litigation which impacts the ability of the Company to actively construct, develop or use the Project, then this closing condition shall be deemed satisfied with respect to such pending or threatened litigation;
(vi) All federal authorizations and the Wetland Permit required by §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972), as amended, which are necessary in order to undertake and complete the Comprehensive Grading Work as shown on Exhibit A-11-1 and Exhibit A-11-2 and to develop the Project in accordance with the Current Site Plan have been obtained, the Wetland Mitigation credits have been purchased, and such Wetland Permit does not contain conditions which delay the commencement or continuation of the Comprehensive Grading Work by more than 120 days; and
(vii) The Company and the Public Parties shall have agreed upon the form of all customary documents, including without limitation the Definitive Documents, necessary and reasonable for the consummation of the transactions contemplated by this Agreement, including the Rental Agreement and all documents related to the Project Bonds.
(cb) The Public Parties’ obligation to consummate the Closing is expressly conditioned upon the satisfaction or waiver of the following:
(i) No Default or Event event of Default shall exist default beyond any applicable notice and cure periods on the part of the Company has occurred and is continuing as of the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.; and
(dii) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower Company shall have paid all fees and expenses of the Agent Project Bonds as set forth herein, and the Attorney Costs incurred in connection with any all other fees and expenses of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant JDA as required by Section 3.6(c) hereof to be paid on or prior to the Fee LetterClosing; and.
(fiii) To The Company and the extent not previously provided under the DIP Loan Agreement, the Agent Public Parties shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in agreed upon the form of Exhibit E hereto.
(n) The Agent shall be satisfied with all customary documents, including without limitation the terms Definitive Documents, necessary and conditions reasonable for the consummation of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement, including the Rental Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed documents related to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangementsProject Bonds.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 3 contracts
Sources: Economic Development Agreement (Rivian Automotive, Inc. / DE), Economic Development Agreement, Economic Development Agreement
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof The obligations of DIGITAL and Sellers under this agreement shall be and are subject to fulfillment, prior to or Section 13.2(a)(ii) hereofat the Closing, of each of the following conditions:
(ai) This Agreement That AVE's representations and warranties contained herein shall be true and correct at the other Loan Documents have been executed by each party thereto time of Closing, as if such representations and each Loan Party warranties were made at such time;
(ii) That AVE in all material respects shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before it prior to or at the time of the Closing;
(iii) That AVE's directors, by proper and sufficient vote taken either by consent of directors or at a meeting duly and properly called and held, shall have properly approved all of the matters described in Section 7(b)(i) herein; and
(iv) That AVE's common stock will be listed on such Closing Datethe National Quotation Bureau, Inc.'s Bulletin Board.
(b) All The obligations of AVE under this Agreement shall be and are subject to fulfillment, prior to or at the Closing of each of the following conditions:
(i) That AVE's Shareholders and Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; approved the contemplated reverse split of AVE's outstanding Common Stock; approved the resignation of all of AVE's current directors and the election of up to ___ designees of DIGITAL to serve as directors in place of AVE's current directors; approved a change AVE'S corporate name to a name selected by DIGITAL and will have approved such other changes as are consistent with this Agreement and approved by DIGITAL for submission to AVE stockholders;
(ii) That DIGITAL's and Sellers' representations and warranties made hereunder and in the other Loan Documents contained herein shall be true and correct as at the time of the Closing Date as if such representations and warranties were made on at such date (both immediately prior to, time and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal that there shall have been satisfactory no Material Adverse Effect with respect to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents DIGITAL; and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent York shall have received a copy certificate of the certificate or articles DIGITAL and Sellers to such an effect signed by a duly authorized officer of incorporation or other constitutive documents, in each case amended to date, of DIGITAL and by each of the Loan PartiesSellers; and
(iii) That DIGITAL and Sellers shall have performed or complied with all agreements, certified as terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of Closing Date and AVE shall have received a recent date Certificate of DIGITAL and Sellers to such effect signed by the Secretary or duly authorized officer of State or other appropriate official of the state or other jurisdiction of its organization DIGITAL and dated as of a recent date; a certificate of the Secretary of by each of the Loan Parties, dated the Closing Date and certifying Sellers;
(Aiv) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan PartyThat DIGITAL's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall will have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially signed non-compete clauses in the form of attached hereto as Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the J"Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.;
Appears in 3 contracts
Sources: Acquisition Agreement (Cyco Net Inc), Acquisition Agreement (Cyco Net Inc), Acquisition Agreement (Cyco Net Inc)
Conditions Precedent to Closing. Date This Agreement 9.1 Purchaser's obligation to close under this Purchase Contract, shall become effective at such time as be subject to and conditioned upon the fulfillment of each and all of the following conditions precedent having been satisfied in a manner satisfactory precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser at each Closing pursuant to the Agent (terms and in the case of any documents, agreements or other deliveries, such documents, agreements conditions hereof shall have been delivered and deliveries shall be in form and substance reasonably satisfactory to Purchaser.
9.1.2 Each of the Agentrepresentations and warranties of Seller contained herein shall be true and correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of such date and time.
9.1.3 Seller shall have complied with, fulfilled and performed in all respects each of the covenants, terms and conditions to be complied with, fulfilled or performed by Seller hereunder.
9.1.4 Purchaser shall have received its internal approvals prior to the expiration of the Feasibility Period.
9.1.5 Purchaser shall have received estoppel certificates in the form set forth on Exhibit 9.1.5 attached hereto from each of the tenants listed on the Schedule attached hereto as Schedule 9.1.5.1 (or the form required under the applicable lease for any tenant unwilling to execute the form attached hereto as Exhibit 9.1.5) (each, a "Tenant Estoppel"), in and Purchaser shall have received a Seller's Best Knowledge Estoppel (as hereinafter defined) for each case with tenant that has not delivered a Tenant Estoppel.
9.1.6 There shall not be pending or, to the consent knowledge of either Purchaser or Seller, any litigation or threatened litigation which, if determined adversely, would restrain the consummation of any of the Majority Lenders transactions contemplated by this Purchase Contract, or declare illegal, invalid or nonbinding any of the covenants or obligations of Seller hereunder Notwithstanding anything to the extent required contrary, there are no other conditions on Purchaser's obligation to Close except as expressly set forth above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofthis Purchase Contract, Seller's obligation to close with respect to conveyance of a particular Property under this Purchase Contract shall be subject to and conditioned upon the fulfillment of each and all of the following conditions precedent:
(a) This Agreement 9.2.1 Purchaser's representations and the other Loan Documents warranties set forth in this Purchase Contract shall have been executed by each party thereto true and each Loan Party correct in all material respects when made, and shall be true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all covenants, agreements conditions, and conditions contained herein and other obligations in the other Loan Documents which are required this Purchase Contract to be performed or complied with by such Loan Party before it at or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (Closing including, without limitation, the Term Debt) and other agreements payment in full of the Loan Parties and their Subsidiaries Purchase Price.
9.2.3 There shall not be pending or, to remain outstanding after the Closing Date (including, without limitationknowledge of either Purchaser or Seller, any subordination litigation or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with threatened litigation which, if determined adversely, would restrain the all intercompany arrangements relating to the acquisition, ownership and transfer consummation of Inventory any of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtainedPurchase Contract or declare illegal, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law invalid or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon nonbinding any of the Loan Documents covenants or any obligations of the transactions contemplated therebyPurchaser hereunder.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers 9.2.4 If applicable, Purchaser shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other produced evidence reasonably satisfactory to the Agent (in each case dated as Seller of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law Purchaser's compliance with Hart-Scott-Rodino Act requirements or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance non-applicability t▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇nsactions contemplated by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderPurchase Contract.
Appears in 2 contracts
Sources: Purchase and Sale Contract (Century Pension Income Fund Xxiv), Purchase and Sale Contract (Century Pension Income Fund Xxiii)
Conditions Precedent to Closing. Date This All obligations of Purchaser under this Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory are subject to the Agent (and in the case of any documentsfulfillment, agreements on or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory prior to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified following conditions:
9.1. That the representations of the Acquired Company and of the Purchaser shall be true at and as of the closing date as though such representations were made at and as of such time;
9.2. That Purchaser shall have received a recent date by written opinion, dated on the Secretary closing date, of State or other appropriate official counsel representing the Acquired Company, to the effect that the Acquired Company has been duly incorporated and is in good standing under the laws of the state or other jurisdiction State of its organization with a capitalization as represented in this Agreement; that the Acquired Company is duly licensed or qualified to do business in any and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as all States or jurisdictions in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (which it does business or where in the case opinion of a Loan Party that Counsel such qualification is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and required; that such resolution has not been modifiedcounsel knows of no litigation, rescinded investigation, or amended and is governmental proceeding pending or threatened against the Acquired Company which might result in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position condition of the Loan Parties as determined by Acquired Company or in any liability on the Agent part of the Acquired Company; and that the Majority Lenders assignment and delivery of the Shares of the Acquired Company pursuant to this Agreement will vest in their sole discretionPurchaser all right, title and interest in and to such Shares, free and clear of all liens, encumbrances and equities.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower 9.3. That Purchaser shall have received a certificate dated on the proceeds closing date and signed by the President of the Term Debt Acquired Company, that since the date of this Agreement the Acquired Company has not done or permitted to be done any of the acts or things prohibited by this Agreement;
9.4. That the auditors and accountants appointed by the Agent Purchaser to examine the books and records of the Acquired Company shall not as of the closing date have rendered a report to Purchaser stating that the financial condition of Acquired Company is not substantially as represented herein or that in their opinion the Acquired Company has contingent liabilities material in amount beyond that described in the Balance Sheet annexed hereto or as disclosed herein;
9.5. That no claim or liability not fully covered by insurance shall have entered into an Intercreditor Agreement with been asserted against the administrative agent for the Term Debt substantially in the form Acquired Company nor has it suffered any loss on account of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (includingfire, without limitationflood, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination accident or other intercreditor provisions contained therein calamity of such a character as to materially adversely affect their financial condition, regardless of whether or applicable thereto).
(o) The Agent not such loss shall be reasonably satisfied with the all intercompany arrangements relating to the acquisitionhave been insured, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders that Purchaser shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the closing date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer the President of the Borrower, dated Acquired Company so stating;
9.6. That all covenants and indemnifications made herein by the Closing Date, Acquired Company which are to such effect. Execution and delivery be performed at or prior to the Agent by a Lender of a counterpart of this Agreement closing shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.duly performed;
Appears in 2 contracts
Sources: Purchase and Sale of Stock Agreement (Madison Ave. Media, Inc.), Share Exchange Agreement (Kahzam, Inc.)
Conditions Precedent to Closing. Date This Agreement The Closing shall become effective at such time as be subject to the satisfaction of the following conditions precedent, unless specifically waived in writing by the Lender in its sole discretion, it being agreed and acknowledged by the Borrower and the Guarantor Parties that the Lender shall have no obligation whatsoever to close the transaction provided for in this Agreement unless all such conditions precedent having have been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofsatisfied:
(a) This Agreement the Borrower and Guarantor have executed and delivered the other Loan Conveyance Documents have been executed by each party thereto and each Loan Party as required pursuant to the terms hereof into escrow with K&L Gates LLP (the “Closing Agent”) whose address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ who shall have performed and complied with all covenants, agreements and conditions contained herein and in provide satisfactory evidence of same to the other Loan Documents which are required Lender prior to be performed or complied with by such Loan Party before or on such Closing Date.Closing;
(b) All the Borrower and Guarantor Parties have delivered to the Lender the additional documents and information specified in Section 3.4 below (including, but not limited to, the contracts set forth in Section 3.4(e);
(c) the Guarantor has executed and delivered to Lender a Call Option Agreement in form and substance acceptable to the Lender (the “Call Option Agreement”) and, if applicable, the transactions contemplated thereby have been approved by the Guarantor Shareholders;
(d) the Borrower and Guarantor Parties have executed and delivered a release of claims as of the Closing Date in the form attached hereto as Exhibit “I”;
(e) the Transaction Resolution shall have been approved by the requisite number of votes of the Guarantor Shareholders and such resolutions remain in full force and effect and holders of not more than one percent (1%) of the common shares of the Guarantor shall have exercised their right to dissent with respect to the Transaction Resolution in accordance with the Business Corporations Act (British Columbia);
(f) the Lender has received a title policy commitment in form and substance acceptable to the Lender;
(g) the Lender has received an executed employment agreement for ▇▇▇▇▇ ▇. Blink to serve as an executive officer of the Designee at Closing, which employment agreement is in form and substance acceptable to Lender;
(h) the Lender has received a good standing certificate (or its equivalent) for the Borrower and Guarantor from the secretary of state or similar Governmental Authority of the jurisdiction under the laws in which each is organized;
(i) the Lender is satisfied that all state and local cannabis licenses required to operate the Loan Collateral will remain in full force and effect before and after being assigned to the Designee at Closing;
(j) no Governmental Authority has enacted, issued, promulgated, enforced or entered any order, writ, judgment, injunction, decree, stipulation, determination or award which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof;
(k) no Action has been commenced against the Borrower, Guarantor Parties or Lender which would prevent the Closing and no injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby;
(l) the Lender has received executed releases, in form and substance acceptable to Lender, of all indebtedness from each holder of the Scheduled Indebtedness (as defined below) and any other holder of Indebtedness (other than trade payables incurred in the ordinary course of business or amounts owing to Lender) owed by Borrower or Guarantor;
(m) all representations and warranties made hereunder and of the Borrower or any Guarantor Party contained in the other Loan Documents shall be this Agreement are true and correct as of the Closing Date as if made and the Borrower and each Guarantor Party have performed and satisfied all covenants contained herein on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on before the Closing Date, or would exist after giving effect to including the Loans to be made on delivery of such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent information and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties documentation as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as is required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.and
(n) The Agent the Borrower and the Guarantor Parties shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating have delivered to the acquisitionLender such other documents, ownership affidavits, certifications, or instruments as the Lender reasonably requests and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence are reasonably satisfactory necessary to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to consummate the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated therebyAgreement.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 2 contracts
Sources: Deed in Lieu of Foreclosure Agreement, Deed in Lieu of Foreclosure Agreement
Conditions Precedent to Closing. 7.1 Conditions to the Company's Obligations. The obligations of the Company with respect to the Investors required to be performed on the Closing Date This Agreement shall become effective be subject to the satisfaction or waiver in writing, at such time as or prior to the Closing, of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This The representations and warranties of each Investor contained in this Agreement which are qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all respects and the other Loan Documents have been executed by each party thereto representations and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents warranties of such Investor which are required to not so qualified shall be performed or complied with by such Loan Party before or true and correct in all material respects, in each case on such and as of the date hereof and on and as of the Closing Date, as if made on and as of the Closing Date.
(b) All representations Each Investor shall have performed in all material respects all obligations and warranties made hereunder agreements, and complied in the other Loan Documents shall all material respects with all covenants contained in this Agreement to be true performed and correct as of complied with by such Investor at or prior to the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit)Date.
(c) No Default provision of any Applicable Law, injunction, order or Event decree of Default any Governmental Authority shall exist on be in effect which has the Closing Date, effect of making the Transactions illegal or would exist after giving effect to shall otherwise restrain or prohibit the Loans to be made on such date or consummation of the Letters of Credit to be issued or the Credit Support to be provided on such dateTransactions.
(d) The Agent and the Lenders Company shall have received from each Investor certificates representing the aggregate number of shares of Original Preferred Stock and the aggregate number of Original Warrants set forth opposite such opinions of counsel (concerning, among other things, entry Investor's name on Schedule A hereto concurrently with each Investor's receipt from the Company of the order confirming Notes in an aggregate principal amount and the Plan pro rata portion of Reorganization the Cash Proceeds set forth opposite such Investor's name on Schedule A hereto.
(e) Each Investor shall have executed and proper notice having been givendelivered the Term Loan Agreement.
(f) for Each Investor shall have executed and delivered the Loan Parties Amended Registration Rights Agreement.
(g) Each Investor shall have executed and delivered the Termination of Stockholders' Agreement.
(h) The Company shall have received the written opinion of Evercore Partners, Inc., as contemplated by Section 2.2(c).
(i) The Company shall have received letters of resignation of each of the Agent two directors designated by the Sandler Investors as holders of Original Preferred Stock and each of the two directors designated by the MidOcean Investor as a holder of Original Preferred Stock.
7.2 Conditions to Each Investor's Obligations. The obligations of each Investor required to be performed on the Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to the Closing, of the following conditions:
(a) The representations and warranties of the Company contained in this Agreement which are qualified by any "materiality", "material adverse effect" or any Lender similar qualifier shall requestbe true and correct in all respects and the representations and warranties of the Company which are not so qualified shall be true and correct in all material respects, in each such opinion case on and as of the date hereof and on and as of the Closing Date, as if made on and as of the Closing Date.
(b) The Company shall have performed in all material respects all of its obligations and agreements, and complied with covenants contained in this Agreement to be in a form, scope, performed and substance reasonably satisfactory complied with at or prior to the AgentClosing Date.
(c) No provision of any Applicable Law, injunction, order or decree of any Governmental Authority shall be in effect which has the Lenderseffect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(d) The Company shall have delivered to such Investor a certificate executed by it or on its behalf by a duly authorized representative, dated the Closing Date, to the effect that each of the conditions specified in paragraph (a) through (c) and their respective counsel(l) of this Section 7.2 has been satisfied.
(e) The Borrower Company shall have paid all fees and expenses delivered to such Investor the certificate executed by the Secretary of the Agent and Company, dated the Attorney Costs incurred in connection with any of the Loan Documents and the transactions Closing Date, as contemplated thereby, including, without limitation pursuant to the Fee Letterby Section 2.2(b)(vii).
(f) To The Company and each of the extent not previously provided under other parties thereto (other than the DIP Investors) shall have executed and delivered the Term Loan Agreement, the Agent and such Investor shall have received evidence, in form, scope, and substance, reasonably evidence satisfactory to it in its sole discretion that the Agent, of all insurance coverage as required by closing conditions under the AgreementTerm Loan Agreement have been satisfied and the transactions contemplated thereby shall be consummated simultaneously with the Exchange.
(g) The Agent Company and each of the Lenders parties thereto (other than the Investors) shall have had an opportunity, if they so choose, to examine executed and delivered the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respectsAmended Registration Rights Agreement.
(h) All proceedings taken in connection with The Company and the execution each of this the parties thereto (other than the Investors) shall have executed and delivered the Termination of Stockholders Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent Such Investor shall have received the Opinion, dated as of the Closing Date, and addressed to such Investor in form and substance reasonably acceptable to the MidOcean Investor and the Sandler Investors.
(j) Such Investor shall have received a copy long-form good standing certificate of the certificate or articles of incorporation or other constitutive documentsCompany and each Subsidiary, in each case amended to date, of each of the Loan Parties, certified dated as of a recent date as close as practicable to the Closing Date, issued by the Secretary of State or other appropriate official of the state or other jurisdiction State of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewithDelaware, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date contemplated by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(jSection 2.2(b)(viii).
(k) There Such Investor shall be no material adverse change have received the Notes in an aggregate principal amount and the business, operations, assets, properties, liabilities, profits, prospects or financial position pro rata portion of the Loan Parties as determined by Cash Proceeds set forth opposite such Investor's name on Schedule A hereto concurrently with the Agent Company's receipt of the certificates representing the aggregate number of shares of Original Preferred Stock and the Majority Lenders in their sole discretionaggregate number of Original Warrants set forth opposite such Investor's name on Schedule A hereto.
(l) The Lenders There shall not have occurred any event, circumstance, condition, fact, effect or other matter which has had or would reasonably be fully satisfied with expected to have a material adverse effect (x) on the compliance by the Loan Parties with any and all applicable lawscondition (financial or otherwise), statutesbusiness, rules and regulations relating to the conduct and properties, assets, liabilities, operations or results of operations of the business Company and properties the Subsidiaries, taken as a whole or (y) on the ability of the Loan PartiesCompany and the Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the Exchange contemplated hereby.
(m) The Borrower Private Placement shall have received been successfully consummated by the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the Company on terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements issuance price of the Loan Parties Common Stock) satisfactory to the MidOcean Investor and their Subsidiaries to remain outstanding after the Closing Date Sandler Investors.
(includingn) The Company shall have received the written opinion of Evercore Partners, without limitationInc., any subordination or other intercreditor provisions contained therein or applicable theretoas contemplated by Section 2.2(c).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders All other Investors shall have received evidence reasonably satisfactory elected to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to consummate simultaneously the transactions contemplated by this Agreement and the other Loan Documents Transaction Documents.
(p) The Company's outstanding Senior Subordinated Debentures due 2005 shall have been obtainedrepaid in full, and remain in full force and effect; all applicable waiting periods satisfactory evidence thereof shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in been delivered to the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated therebyInvestors.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers Company shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan Investor evidence of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees costs and expenses of such Investor required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested reimbursed by the Agent Company pursuant to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender8.10.
Appears in 2 contracts
Sources: Exchange Agreement (Infocrossing Inc), Exchange Agreement (Midocean Capital Partners Lp)
Conditions Precedent to Closing. Date This The obligations of the Parties under this Agreement shall become effective be and are subject to fulfillment, prior to or at such time as the Closing, of each of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This Agreement Each of the representations and warranties of the other Loan Documents have been executed Parties contained herein shall be true and correct at the time of the Closing Date as if such representations and warranties were made at such time except for changes permitted or contemplated by each party thereto and each Loan Party this Agreement;
(b) The Parties shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before them prior to or on such Closing Date.
(b) All representations and warranties made hereunder and in at the other Loan Documents shall be true and correct as time of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).Closing;
(c) No Default or Event of Default Weixin BVI shall exist on the Closing Datehave received, or would exist after giving effect and provided a copy to the Loans to be made on such date or Company, an opinion of each of the Letters Han Kun Law Offices, Weixin BVI’s counsel in the People’s Republic of Credit to be issued or China, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ BVI’s legal counsel in the Credit Support to be provided on such date.British Virgin Islands, substantially in the forms attached hereto as Exhibit A;
(d) The Agent and Prior to Closing the Lenders Company shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in engaged a form, scope, and substance reasonably satisfactory Company-sponsored equity research firm that is mutually acceptable to the Agent, the Lenders, Company and their respective counsel.Weixin BVI;
(e) The Borrower Company shall have paid all fees cancelled 6,679,899 shares of Common Stock and expenses warrants to purchase 7,804,803 shares of Common Stock owned by certain of the Agent Company’s original stockholders (the “Share and the Attorney Costs incurred in connection with any Warrant Cancellation”) pursuant to that certain Share and Warrant Cancellation Agreement dated as of the Loan Documents date of this agreement entered into by and among the transactions contemplated therebyCompany and its stockholders, including, without limitation pursuant to the Fee Letter.a copy of which is attached as Exhibit B;
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent The Company shall have received evidence, in form, scope, and substance, reasonably satisfactory to conducted an initial closing of the Agent, Equity Financing of all insurance coverage as required by at least the Agreement.Minimum Offering Amount; and
(g) The Agent Company, Weixin BVI and the Lenders WestPark shall have had an opportunity, if they so choose, to examine entered into a Placement Agent Agreement on mutually acceptable terms for WestPark’s engagement as the books of account and other records and files of placement agent for the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.Equity Financing; and
(h) All proceedings taken in connection with agreements and documents required to be executed and delivered at the execution initial closing of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance the Equity Financing pursuant to the Agent.
(i) The Placement Agent Agreement shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date been duly executed and delivered by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date necessary persons and/or entities prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its SecretaryClosing.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 2 contracts
Sources: Share Exchange Agreement (China Wesen Recycling Technology, Inc.), Share Exchange Agreement (China Wesen Recycling Technology, Inc.)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as if the Administrative Agent shall have received all of the following conditions precedent having been satisfied in each dated a manner date reasonably satisfactory to the Administrative Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be otherwise in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Administrative Agent, the Lenders, and their respective counsel.:
(ea) The Borrower shall have paid all fees and expenses (i) A counterpart of the Agent and the Attorney Costs incurred in connection with any this Agreement signed on behalf of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
each party hereto or (fii) To the extent not previously provided under the DIP Loan written evidence (which may include facsimile transmission of a signed signature page of this Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, ) that each party hereto has signed a counterpart of all insurance coverage as required by the this Agreement.
(gb) The Agent Certified copies of resolutions of the Board of Directors or equivalent managing body of the Company approving the transactions contemplated by this Agreement and of all documents evidencing other necessary organizational action of the Company with respect to this Agreement 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respectsdocuments contemplated hereby.
(hc) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy A certificate of the certificate Secretary or articles an Assistant Secretary of incorporation or Company certifying (A) the names and true signatures of the officers of the Company authorized to sign this Agreement and the other constitutive documentsdocuments to be delivered hereunder; (B) that attached thereto are true and correct copies of the organizational documents of the Company, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent in effect on such date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (AC) that attached thereto is a are true and complete copy correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance by the Company of this Agreement and the documents contemplated hereby.
(d) A certificate signed by either the chief financial officer, principal accounting officer or treasurer of the Company stating that (A) the representations and warranties contained in Section 4.01 are correct on and as of the date of such Loan Party's By-laws certificate as in effect though made on and as of such date, (B) no Default or Event of Default has occurred and is continuing on the date of such certificate and at (C) all times since a date prior to the date of the resolution described required governmental and third party consents and approvals in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of connection with this Agreement have been obtained and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is are in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(je) The Agent shall have received certificates A favorable opinion of good standingSidley Austin LLP, existence or its equivalent with respect counsel for the Company, in form and substance reasonably acceptable to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)Administrative Agent.
(kf) There shall be no material adverse change in For the business, operations, assets, properties, liabilities, profits, prospects or financial position account of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable lawsparties entitled thereto, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent other amounts payable pursuant to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000Fee Letters.
(ug) The Borrower's Plan of Reorganization and the order A Note, duly executed by or on behalf of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form Company and substance made payable to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agenteach Bank that has requested a Note.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 2 contracts
Sources: Letter of Credit and Reimbursement Agreement, Letter of Credit and Reimbursement Agreement (Commonwealth Edison Co)
Conditions Precedent to Closing. Date This Agreement (a) The Debentureholder will only be obliged to subscribe for Debentures if:
(i) the Debentureholder, in its sole discretion, acting reasonably and in good faith, shall become effective at such time as be satisfied with their due diligence review with respect to the following conditions precedent having been satisfied business, assets, financial condition and affairs of the Issuer and the Group;
(ii) prior to the Closing, the Debentureholder has received all of the documents listed in a manner Schedule 2 (Conditions Precedent) in form and substance reasonably satisfactory to it (in its discretion), save for the Agent documents listed in Clause 4.2(a)(ii) (Closing Procedure);
(iii) on each of the date hereof and on the Closing Date, no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the case Issuer or prohibiting the sale of the Debentures or the issue of Shares issuable thereunder in accordance with the terms of the Debenture Certificate and no proceeding for such purpose being pending or, to the knowledge of the Issuer, threatened by any Governmental Authority or the Stock Exchange;
(iv) on each of the date hereof and on the Closing Date: (A) the representations and warranties of the Issuer in this Agreement are true, accurate and correct at, and as if made on, such date, (B) the Issuer has performed all of its respective obligations under this Agreement to be performed on or before such date and on the Closing Date, and (C) there has been no material breach of any documentsof the obligations of the Issuer under this Agreement;
(v) on the Closing Date, agreements no Default is continuing or other deliverieswould result from the issue of the Debentures;
(vi) there has been no Material Adverse Change;
(vii) the Debentureholder shall have received at the Closing Time favourable legal opinions addressed to the Debentureholder dated and delivered on the Closing Date from the Issuer's legal counsel, such documentsand from local counsel, agreements and deliveries shall be in each case in form and substance satisfactory to the AgentDebentureholder (in its discretion), in each case acting reasonably, with the consent of the Majority Lenders respect to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereoffollowing matters:
(a1) This with respect to the Issuer (A) the enforceability of the Debenture Documents; (B) the creation and valid issuance of the Debentures; (C) corporate matters related to the Issuer and its Material Subsidiaries; and (D) such matters that are customary in transactions similar to the offering of the Debentures, subject to customary assumptions, qualifications and limitations;
(2) with respect to each Material Subsidiary (A) being a corporation existing under the laws of the jurisdiction in which it was incorporated, amalgamated, continued or formed, as the case may be, and having all requisite corporate power to carry on its business as now conducted and to own, lease and operate its property and assets; (B) in respect of title to and rights in the Properties and Permits applicable to each Material Subsidiary; (C) as to its authorised and issued and outstanding capital; (D) all of its issued and outstanding shares being registered, directly or indirectly, in the name of the Issuer; and (E) such matters that are customary in transactions similar to the offering of the Debentures, subject to customary assumptions, qualifications and limitations.
(viii) the Issuer having paid: (1) the reasonable out-of-pocket due diligence fees and expenses of legal counsel retained by the Lead Subscriber up to a maximum of US$75,000 (excluding disbursements and applicable taxes); and (2) the reasonable out-of-pocket fees and expenses of UK legal counsel retained by the Lead Subscriber up to a maximum of £20,000 (excluding disbursements and applicable taxes);
(ix) in the Debentureholder’s opinion (acting in good faith), since the date of this Agreement there has been no adverse change in the financial markets in the United States which would reasonably be considered material in the context of the issue of the Debentures and the other Loan Documents have been executed purchase thereof by each the Debentureholder;
(x) the Issuer having obtained all required regulatory (including Stock Exchange) and corporate approvals, and all requisite third-party thereto and each Loan Party shall have performed and complied with all covenantsconsents, agreements and conditions contained herein and to permit the completion of the transactions contemplated hereby; and
(xi) on or prior to the Closing, the Debentureholder has received the documents listed in the other Loan Documents which are required Clause 4.2(a)(ii) (Closing Procedure) to be performed or complied with by such Loan Party before or on such Closing Dateheld in escrow pending Closing.
(b) All representations and warranties made hereunder and in The Debentureholder shall notify the other Loan Documents shall be true and correct as Issuer promptly upon receipt by or on behalf of the Closing Date as if made on such date Debentureholder of all of the documents and other evidence listed in Schedule 2 (both immediately prior to, Conditions Precedent) in form and after giving effect to, such extension of credit)substance satisfactory to it.
(c) No Default The Debentureholder may, in its absolute discretion and upon such terms as it thinks fit, waive compliance with the whole or Event any part of Default shall exist this Clause 4.1 (Conditions Precedent to Closing).
(d) If, on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry any of the order confirming conditions precedent provided in Clause 4.1(a) have not been satisfied, nor waived as provided in Clause 4.1(c), then the Plan Debentureholder shall, at its election, be relieved of Reorganization and proper notice having been givenall its obligations under Clause 3.2 (Undertaking to Subscribe) to subscribe for the Loan Parties Debentures under this Agreement, without prejudice to its right to seek indemnification for damages suffered by the Debentureholder as the Agent a result of, or any Lender shall request, each such opinion to be other remedy the Debentureholder may have in a form, scopeconnection with, and substance reasonably satisfactory default or non-compliance of the Issuer’s obligations hereunder prior to the Agent, the Lenders, and their respective counselsuch termination.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required An election by the Agreement.
(gDebentureholder under Clause 4.1(d) The Agent and shall not operate as a waiver of any rights the Lenders shall Debentureholder may have had an opportunity, if they so choose, to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results by reason of such examination and audit and appraisal shall have been satisfactory failure to the Agent in all respectssatisfy or such non-fulfilment.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 2 contracts
Sources: Subscription Agreement (Lifezone Metals LTD), Subscription Agreement (Lifezone Metals LTD)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through The Company’s obligation to complete the purchase and sale of the Shares and deliver such stock certificate(s) to a Purchaser at the Closing shall be subject to the following conditions, any one or more of which may be waived in writing by the Company: (wi) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and receipt by the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and Company of same-day funds in the other Loan Documents which full amount of the purchase price for the Shares being purchased hereunder by such Purchaser; (ii) that the representations and warranties made by such Purchaser herein are accurate as of the Closing Date; (iii) that such Purchaser has fulfilled undertakings and covenants set forth herein required to be performed fulfilled prior to the Closing; (iv) such Purchaser shall have executed and delivered to the Company the Questionnaire and the Registration Statement Questionnaire attached hereto as part of Appendix I (the “Registration Statement Questionnaire”), pursuant to which such Purchaser shall provide information necessary to confirm such Purchaser’s status as an “accredited investor” as defined in Rule 501 promulgated under the Securities Act; (v) no proceeding challenging this Agreement or complied with the transactions contemplated hereby or thereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted or shall be pending before any court, arbitrator or governmental body, agency or official; (vi) the sale of Shares to such Purchaser shall not be prohibited by any law or governmental order or regulation; (vii) such Loan Party before or on such Closing DatePurchaser has received a copy of the Private Placement Memorandum and the Company Disclosure Letter; and (viii) the Acquisition and all of the transactions contemplated by the Acquisition Agreement shall have been consummated pursuant to the terms thereof.
(b) All Each Purchaser’s obligation to accept delivery of such stock certificate(s) and to pay for the Shares evidenced thereby shall be subject to the conditions: (i) that the representations and warranties made hereunder and in by the other Loan Documents shall be true and correct Company herein are accurate as of the Closing Date Date; (ii) that the Company has fulfilled all undertakings and covenants set forth herein required to be fulfilled prior to the Closing; (iii) that the Acquisition shall have been completed; (iv) that the Common Stock shall be quoted by at least three market-makers on the OTC Bulletin Board within five (5) days of the Closing Date; (v) the absence of any Material Adverse Change (as if made on defined in Section 4.22) affecting the Company since December 31, 2007; (vi) no proceeding challenging this Agreement or the transactions contemplated hereby or thereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted or shall be pending before any court, arbitrator or governmental body, agency or official; (vii) the sale of Shares to such date Purchaser shall not be prohibited by any law or governmental order or regulation; (both immediately prior toviii) that the Placement Agent shall have received the opinion of Sonfield & Sonfield, and after giving effect tothe Company’s outside counsel, such extension dated as of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect substantially covering the matters set forth in Exhibit 2 attached hereto; (ix) that the Company shall have delivered to the Loans to be made on such date or Placement Agent a certificate evidencing the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent formation and the Lenders shall have received such opinions of counsel (concerning, among other things, entry good standing of the order confirming the Plan Company and of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be Flotation in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses jurisdictions of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date formation issued by the Secretary of State (or other appropriate official comparable office) of such jurisdiction, as of a date within ten (10) days of the state Closing Date; (x) that the Company shall have delivered to the Placement Agent a certificate evidencing the Company’s and Flotation’s qualification as a foreign corporation and good standing issued by the Secretary of State (or other comparable office) of each jurisdiction in which the Company and Flotation conducts business, as of its organization a date within ten (10) days of the Closing Date; (xi) that the Company shall have delivered to the Placement Agent a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) days of the Closing Date; (xii) that the Company shall have delivered to the Placement Agent a certificate, executed by the Secretary of the Company and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, as to such effect. Execution and delivery (x) the resolutions consistent with Section 4.4 as adopted by the Company’s Board of Directors in a form reasonably acceptable to the Agent by a Lender Placement Agent, (y) the Certificate of a counterpart Incorporation, as amended and (z) the Bylaws, each as in effect at the Closing. The Company shall provide copies of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent any of the documents referred to in this Section 10.1 have been fulfilled 3.3 to the satisfaction of any Purchaser upon such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderPurchaser’s request.
Appears in 2 contracts
Sources: Purchase Agreement (Deep Down, Inc.), Purchase Agreement (Deep Down, Inc.)
Conditions Precedent to Closing. Date This Agreement The Commitments of the Lenders shall not become effective at such time as unless the following conditions precedent having shall have been satisfied in a manner satisfactory fulfilled on or prior to October 8, 1998 (or such later Business Day as the parties hereto may mutually agree):
(a) The Administrative Agent (and in shall have received the case following, each dated the date of any documentsthe Closing, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), Lenders and (except for the Notes) in sufficient copies for each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofLender:
(ai) This Agreement this Agreement, duly executed by the Borrower, each Bank and the Administrative Agent;
(ii) the A Notes payable to the order of the Lenders, respectively, duly completed and executed by the Borrower;
(iii) certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement, the Notes and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenantsto which it is, agreements and conditions contained herein and in the other Loan Documents which are required or is to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior tobe, a party, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect all documents evidencing other necessary corporate action with respect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan this Agreement, the Agent shall have received evidence, in form, scope, Notes and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.such Loan Documents;
(giv) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each or an Assistant Secretary of the Borrower certifying the names, true signatures and incumbency of the officers of the Borrower authorized to sign this Agreement, the Notes and the other Loan PartiesDocuments to which it is, dated or is to be, a party;
(v) copies of the Closing Date Restated Articles of Incorporation (or comparable charter document) and certifying (A) that attached thereto is a true and complete copy of such Loan Party's Byby-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described Borrower, together with all amendments thereto, certified by the Secretary or an Assistant Secretary of the Borrower;
(vi) certified copies of all Governmental Approvals, if any, required in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing connection with the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party Documents;
(vii) favorable opinions of:
(A) Sidley & Austin, counsel for the Borrower, in substantially the form of Exhibit 3.01(a)(vii)-1 and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to such other matters as the incumbency Majority Lenders, through the Administrative Agent, may reasonably request;
(B) King & Spalding, counsel to the Administrative Agent, in substantially the form of Exhibit 3.01(a)(vii)-2 and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency such other matters as the Majority Lenders, through the Administrative Agent, may reasonably request; and
(viii) such other approvals, opinions and signature of its Secretarydocuments as any Lender, through the Administrative Agent, may reasonably request.
(jb) The following statements shall be true and correct and the Administrative Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as a certificate of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer authorized officer of the Borrower, dated the date of the Closing Dateand in sufficient copies for each Lender, to such effect. Execution stating that:
(i) the representations and delivery to the Agent by a Lender of a counterpart warranties set forth in Section 4.01 of this Agreement are true and correct on and as of the date of the Closing as though made on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of Default.
(c) The Borrower shall be deemed confirmation by such Lender that have paid (i) all conditions precedent fees under or referenced in this Section 10.1 have been fulfilled 2.04 hereof, to the satisfaction of such Lenderextent then due and payable, and (ii) all costs and expenses of the decision Administrative Agent (including counsel fees and disbursements) incurred through (and for which statements have been provided prior to) the Closing.
(d) The Borrower shall have paid in full all debt outstanding under the Existing Facility, and the commitments of such Lender all the lenders thereunder shall have been terminated.
(e) The Borrower shall have executed and delivered the Other Credit Agreement and the "Loan Documents" referred to execute therein, and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition all conditions precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender3.01 thereof shall have been satisfied.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (Commonwealth Edison Co), Credit Agreement (Commonwealth Edison Co)
Conditions Precedent to Closing. Date This Agreement Neither Agent nor any Lender shall become effective at such time as be obligated to make the initial Loans, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedent having have been satisfied to Agent’s complete satisfaction or waived in a manner satisfactory to writing by Agent and the Lenders:
(a) Agent (and in shall have received each of the case of any documents, agreements or other deliveriesagreements, such documentsinstruments, agreements reports, certificates and deliveries shall be statements set forth on the Schedule of Documents, each duly executed by the appropriate parties and in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.;
(b) All payment by Borrower of Agent’s Fees and all other fees, costs, and expenses of closing (including reasonable fees of counsel to Agent invoiced as of the Closing Date);
(c) no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and that, in Agent’s sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(d) Agent and each Lender shall have completed their business and legal due diligence, including a Collateral audit and field examination, with results satisfactory to Agent;
(e) all of the representations and warranties made hereunder of Borrower under this Agreement and in the other Loan Documents shall be true and correct in all material respects at such date, except to the extent any such representations and warranties relate to an earlier date in which case such representations and warranties shall remain true and correct in all material respects as of such earlier date (provided that the foregoing materiality qualifications shall not apply to any representations and warranties that already are qualified or modified by materiality in the text thereof), and Agent shall have received a certificate, dated as of the Closing Date as if made on such date (both immediately prior toDate, and after giving to that effect to, such extension of credit).signed by an Authorized Signatory;
(cf) No Default or Event of Default Agent shall exist on determine that no Material Adverse Effect shall have occurred since the most recent audited Financial Statements delivered to Agent prior to the Closing Date;
(g) Agent shall have received opinions of counsel addressed to Agent and the Lenders of (i) Winston & ▇▇▇▇▇▇ LLP, special counsel to Borrower and (ii) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Maryland counsel to Borrower, each in form and substance satisfactory to Agent;
(h) Agent and the Requisite Lenders shall have received and approved Borrower’s Credit Policy, which shall be consistent with those previously represented to Agent;
(i) Agent shall have received evidence satisfactory to Agent either that any Person having a Lien (except for Permitted Liens) with respect to the assets of Borrower shall have released such Lien or would exist after giving effect to that such Lien shall be automatically terminated upon the funding of the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.Closing Date; and
(dj) The Agent all other documents and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken legal matters in connection with the execution transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Agreement, all other Loan Documents and all documents and papers relating thereto Section 2.1 shall be satisfactory in form, scopecontrol, and substance to the Agent.
(i) The Agent Borrower shall not have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing any rights under this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to until each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation Section 2.1 has been complied with to Agent’s satisfaction or specifically waived in a writing by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAgent.
Appears in 2 contracts
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc), Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as upon the satisfaction of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofprecedent:
(a) This Agreement and The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other Loan Documents have been electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of dated the Closing Date as if made on such (or, in the case of certificates of governmental officials, a recent date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on before the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Administrative Agent, the Lenders, and their respective counsel.:
(ei) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution executed counterparts of this Agreement, all other Loan Documents sufficient in number for distribution to the Administrative Agent, each Lender and all documents and papers relating thereto shall be satisfactory the Borrower;
(ii) a Swing Line Note executed by the Borrower in form, scopefavor of the Swing Line Lender, and substance to a Committed Loan Note executed by the Agent.Borrower in favor of each Lender requesting a Committed Loan Note;
(iiii) The Agent shall have received a copy such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the certificate or articles of incorporation or other constitutive documentsBorrower as the Administrative Agent may reasonably require evidencing the identity, in each case amended to date, authority and capacity of each of the Loan Parties, certified Responsible Officer thereof authorized to act as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as Responsible Officer in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of connection with this Agreement and the other Loan Documents to which it the Borrower is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.party;
(jiv) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization such documents and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents certifications as the Administrative Agent or its counsel may reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in evidence that each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, General Partner, Bluewater and Pine Prairie is duly organized or formed, and that the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization Borrower is validly existing, in good standing and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory qualified to engage in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent business in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.each jurisdiction as required by Section 5.01;
(v) The Agent shall have received results favorable opinions of searches or other evidence reasonably satisfactory ▇▇▇ ▇▇▇▇▇, Esq., General Counsel of the sole member of the General Partner, and Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., special counsel for the Borrower, addressed to the Administrative Agent (in and each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.Lender;
(wvi) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent Audited Financial Statements and the Lenders of Initial Pro Forma Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the condition specified in Section 4.03(a) has been satisfied, (B) the Initial Pro Forma Financial Statements were prepared in good faith upon assumptions deemed reasonable by the Borrower at the time made, (C) that no Default shall have occurred and be continuing, and (D) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) evidence that all insurance required to be maintained pursuant to Section 6.07 has been obtained and is in effect;
(ix) environmental assessment reports, audits and certifications as reasonably requested by Administrative Agent identifying existing and potential environmental concerns and quantifying related costs and liabilities, associated with any Storage Facilities; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) There shall not have occurred during the period from the date of the most recent Audited Financial Statements through and including the Closing Date any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and there shall be no actions, suits, investigations, proceedings, claims or disputes pending or, to the knowledge of the Borrower, dated threatened in writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues that either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.
(d) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date.
(e) Copies (or electronic access to copies pursuant to the Borrower’s website or ▇▇▇▇▇) of the Registration Statement, including exhibits thereto, as amended through the Closing Date, with any material amendment to such effect. Execution and delivery any financial statements, projections or forecasts contained therein, or any other material amendment to the Agent by a Borrower’s operations, business, assets, properties, liabilities (actual or contingent) or condition (financial or otherwise) as described in the initial Registration Statement filed with the SEC reasonably satisfactory in form and substance to Administrative Agent.
(f) The Closing Date shall have occurred on or before April 30, 2010. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender of a counterpart of that has signed this Agreement shall be deemed confirmation 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 that (i) all conditions precedent in this Section 10.1 have been fulfilled prior to the satisfaction of such Lender, (ii) proposed Closing Date specifying its objection thereto and the decision of such Lender Administrative Agent hereby agrees to execute and deliver to promptly provide the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction Borrower with a copy of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lendernotice received by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Paa Natural Gas Storage Lp), Credit Agreement (Paa Natural Gas Storage Lp)
Conditions Precedent to Closing. Date This Agreement 5.2.1 Conditions in favor of V-Sciences The Closing shall become effective at such time as be subject to the prior fulfillment of each of the following conditions precedent having been satisfied in a manner satisfactory to favor of V-Sciences unless otherwise waived:
a) The representations and warranties of the Agent (and Company contained in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries Section 7.1 shall be true and correct in form and substance satisfactory to the Agent), in each case with the consent all material respects as of the Majority Lenders to the extent required Closing (except that representations and warranties qualified by materiality or a Material Adverse Effect shall be true and correct in clauses (aall respects).
b) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party The Company shall have performed and complied with all covenants, agreements agreements, obligations and conditions contained herein and in the other Loan Documents which this Subscription Agreement that are required to be performed or complied with by the Company on or before such Loan Party before or on such Closing DateClosing.
(bc) All representations authorizations, approvals or permits, if any, of any governmental authority or regulatory body that are required in connection with the lawful issuance and warranties made hereunder sale of the Shares pursuant to this Subscription Agreement shall be obtained and effective as of such Closing.
d) The Company, V-Sciences, any other investor participating in the Series E Round and the other Loan Documents shareholders of the Company representing 85% of all outstanding Shares prior to the Closing of the Series E Financing Round shall be true have executed and correct delivered the Shareholders’ Agreement (or a joinder agreement thereto), in substantially the form of Annex 0 hereto.
e) The Company, V-Sciences, any other Investor requesting so and the other shareholders of the Company named as parties thereto shall have executed and delivered the Registration Rights Agreement (or a joinder agreement thereto), in substantially the form of Annex 5.2.1(e) hereto.
f) V-Sciences and any other Investor requesting so shall have received from ▇▇▇▇▇▇▇ ▇▇, counsel for the Company, an opinion, dated as of the Closing Date as if made on date of such date (both immediately prior toClosing, and after giving effect to, such extension of credit)in substantially the form Annex 5.2.1(f) attached to this Subscription Agreement.
(cg) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders Legal counsel shall have received such opinions of counsel (concerningdelivered to V-Sciences and any other Investor requesting so a certificate, among other things, entry dated as of the order confirming date of such Closing, certifying (i) the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses resolutions of the Agent and the Attorney Costs incurred in connection with any Board of Directors of the Loan Documents Company approving the Subscription Agreement and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan such Agreement, and (ii) resolutions of the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to shareholders of the Agent, Company approving the issuance of all insurance coverage as required by the Agreement.
(g) The Agent Series E Preferred Shares and the Lenders shall have had an opportunity, if they so choose, to examine the books Revised Articles of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent Association in all respects.Annex 3.3
(h) All corporate and other proceedings taken in connection with the execution of this Agreement, all other Loan Documents transactions contemplated at such Closing and all documents and papers relating incident thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects V-Sciences and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent Investors shall have received all documents such counterpart original and instruments, including Uniform Commercial Code financing statements, required by law certified or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all other copies of such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction as reasonably requested. Subscription Agreement regarding AC Immune SA as of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.16 October 2015 10
Appears in 2 contracts
Sources: Subscription Agreement, Subscription Agreement (AC Immune SA)
Conditions Precedent to Closing. Date This Agreement The Lenders shall become effective at such time as not be required to fund any requested Loan or otherwise extend credit to Borrower hereunder, until the date (“Closing Date”) that each of the following conditions precedent having has been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofsatisfied:
(a) This Agreement and the other Each Loan Documents Document shall have been duly executed and delivered to Agent by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in of the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Datesignatories thereto.
(b) All representations and warranties made hereunder and Agent shall have received acknowledgments of all filings or recordations necessary to perfect Collateral Agent’s Liens in the Collateral, insofar as the same may be perfected by filing UCC-1 financing statements, as well as UCC and Lien searches and other Loan Documents shall be true and correct as of evidence reasonably satisfactory to the Closing Date as if made on Lenders that such date (both immediately prior toLiens are the only Liens upon the Collateral, and after giving effect to, such extension of credit)except Permitted Liens.
(c) No [Reserved].
(d) Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of Borrower certifying (i) that, after giving effect to the initial Loans and transactions hereunder, (A) the Obligors and their Subsidiaries, on a consolidated basis, are Solvent; (B) no Default or Event of Default shall exist on exists; and (C) the Closing Daterepresentations and warranties set forth in Section 9 are true and correct; and (ii) that attached thereto are true, or would exist after giving effect to correct and complete copies of the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such datematerial Genco Facilities documentation.
(de) The Agent and the Lenders shall have received a certificate of a duly authorized officer of each Obligor and Parent, certifying (i) that attached copies of such opinions Obligor’s and Parent’s, as applicable, Organic Documents are true and complete, and in full force and effect, without amendment except as shown; (ii) that an attached copy of counsel (concerning, among other things, entry resolutions authorizing execution and delivery by Parent and the Obligors of the order confirming Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the Plan title, name and signature of Reorganization and proper notice having been given) for each Person authorized to sign the Loan Parties Documents. Agent may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor or Parent, as the applicable, in writing.
(f) Agent shall have received a written opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as well as any local counsel to Obligors or any Lender shall requestParent, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy copies of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, charter documents of each of the Loan PartiesObligor and Parent, certified as of a recent date by the Secretary of State or other appropriate official of the state such Obligor’s or other Parent’s, as applicable, jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The . Collateral Agent shall have received good standing certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date for each Obligor and Parent, issued by the appropriate Governmental Authorities Secretary of the state State or other appropriate official of such Obligor’s or Parent’s, as applicable, jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)organization.
(kh) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents a Budget for the four-fiscal quarter period commencing with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and fiscal quarter in which the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated therebyClosing Date occurs.
(qi) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements[Reserved].
(rj) There Each Obligor and Parent shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganizationprovided, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to Administrative Agent and each Lender, all documentation and other information as Administrative Agent or any Lender deems appropriate in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation. If any Obligor or Parent qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have provided a Beneficial Ownership Certification to Administrative Agent and Lenders in all respects and the terms of any Debt relation to such Obligor or Parent, as applicable.
(k) The closing of the Loan Parties shall be Genco Facilities (on terms satisfactory to the Agent.
(vLenders) The Agent shall have received results of searches been consummated on or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on substantially concurrently with the Closing Date.
(wl) The Obligors shall have paid all fees and expenses required to be paid to Administrative Agent, Collateral Agent, Arrangers and Lenders on the Closing Date, including fees and expenses of counsel (to the extent invoiced prior to the Closing Date) and other advisors and under any fee letter to which such Obligor is a party.
(m) Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the a Notice of Borrowing in accordance with Section 2.2.
(n) Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published received a duly executed payoff letter in form and substance reasonably satisfactory to it and dated on or recorded prior to the satisfaction Closing Date with respect to that certain Loan, Security and Guaranty Agreement dated as of October 2, 2024 (as amended), among Borrower and the Agent. The acceptance by Obligors, as borrowers, Bank of America, N.A., as agent, and the Borrower of any Loans made or Letters of Credit issued lending institutions party thereto, together with evidence reasonably satisfactory to it (including UCC-3 financing statement terminations and other termination documents) that on the Closing Date shall such Debt will be deemed to be a representation repaid in full and warranty made by the Borrower Liens securing such Debt have been released, subject only to the effect that all filing of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent applicable terminations and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderreleases.
Appears in 2 contracts
Sources: Senior Secured Term Loan Agreement (Solaris Energy Infrastructure, Inc.), Senior Secured Term Loan Agreement (Solaris Energy Infrastructure, Inc.)
Conditions Precedent to Closing. Date This The effectiveness of this Agreement (which shall become effective at such time as occur on the Closing Date) is subject to the satisfaction of the following conditions precedent having been as of the Closing Date on or before [—] (and if the following conditions precedent are not satisfied by such time, this Agreement shall automatically terminate):
(a) each Party shall have received, in a manner form satisfactory to it, opinions from counsel to the Agent (other Party covering due authorization, execution and delivery of the Capital Protection Documents by the other Party, in the each case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance reasonably satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.Party;
(b) All representations each Party shall have received, in a form satisfactory to it, copies of all Capital Protection Documents duly executed and warranties made hereunder delivered by the other Party and, where applicable, the Guarantor;
(c) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the Custody Agreement duly executed by the Trust and the Custodian;
(d) the Capital Protection Provider shall have received an officer’s certificate of the Fund, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) the incumbency and signature of the officers of the Fund executing any Capital Protection Document, or having authorization to execute any certificate, notice or other Loan Documents shall submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and correct complete copies of the Organizational Documents and each Prospectus of the Fund and the Organizational Documents of the Trust, certified as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension complete copies thereof by the Secretary or an Assistant Secretary of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date Fund or the Letters of Credit to be issued or the Credit Support to be provided on such date.
Trust, as applicable, (diii) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified certificates dated as of a recent date by from the Secretary of State or other appropriate official authority, evidencing the good standing of each of the state or other Trust and the Fund (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Fund;
(e) the Capital Protection Provider shall have received an officer’s certificate of the Adviser, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Adviser and the Secretary or any Assistant Secretary on behalf of the Adviser and which certificate shall include (i) the incumbency and signature of the officers of the Adviser executing any Capital Protection Document, or having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents of the Adviser, certified as of the Closing Date as complete copies thereof by the Secretary or an Assistant Secretary of the Adviser, (iii) certificates dated as of a recent date; a certificate of date from the Secretary of each State or other appropriate authority, evidencing the good standing of the Loan PartiesAdviser (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Adviser;
(f) the Fund shall have received a certificate dated as of the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by the Secretary or an Assistant Secretary of the Capital Protection Provider on behalf of the Capital Protection Provider, and which certificate shall include the incumbency and signature of the employees of the Capital Protection Provider authorized to execute on behalf of the Capital Protection Provider any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement;
(g) the Fund shall have received, in a form satisfactory to it, a certificate, dated as of the Closing Date Date, substantially in the form of Exhibit D, with appropriate insertions and certifying attachments, reasonably satisfactory in form and substance to the Fund, executed by a permanent representative of the Guarantor on behalf of the Guarantor, and which certificate shall include the incumbency and signature of the employees of the Guarantor authorized to execute on behalf of the Guarantor any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement;
(Ah) that attached thereto is the Capital Protection Provider shall have received, in a true and complete form satisfactory to it, a copy of such Loan Party's By-laws as the resolutions, in effect on the date of such certificate form and at all times since a date prior substance reasonably satisfactory to the date Capital Protection Provider, of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing analogous body) of the Fund authorizing the execution, delivery and performance of this Agreement and the other Loan Capital Protection Documents to which it is a party party, certified on behalf of the Fund by the Secretary or an Assistant Secretary of the Fund, as of the Closing Date, which certification shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), shall be in form and substance reasonably satisfactory to the Capital Protection Provider and shall state that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents the resolutions thereby certified have not been amended since amended, modified, revoked or rescinded;
(i) the date Capital Protection Provider shall have received, in a form satisfactory to it, a certification that shall be included in the certificate delivered in respect of the last amendment thereto shown Fund pursuant to Section 3.01(d), stating on behalf of the certificate Fund that as of good standing furnished hereinabove, the Closing Date:
(i) The representations and (D) warranties contained in Section 4.01 are true and correct in all material respects on and as to of the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewithClosing Date, as applicablethough made on and as of the Closing Date;
(ii) No Fund Event or Knock-Out Event exists as of the Closing Date;
(iii) No licenses, authorizations, consents or approvals as referred to in Section 4.01(n) are required as of the Closing Date or, in the case that such documents are required, that they are required and attaching copies thereof; a certificate and
(iv) The Aggregate Protected Amount as of another of such Loan Party's officers as to incumbency and signature of its Secretary.the Closing Date does not exceed the Maximum Settlement Amount;
(j) The Agent the Fund shall have received certificates of good standing, existence or its equivalent arranged with respect the Custodian for the Capital Protection Provider and the Agent to each Loan Party certified as of a recent date by directly receive the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization applicable reports and information contained in each other jurisdiction listed on Schedule 10.1(j).II;
(k) There the representations and warranties made by the Fund and Capital Protection Provider, respectively, contained in ARTICLE 4 shall be no true and correct in all material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position respects on and as of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.Closing Date;
(l) The Lenders each Party shall be fully satisfied with have received, in a form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters reasonably requested by such Party evidencing or confirming the compliance accuracy of the representations and warranties made by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating other parties hereunder or the authority of such other parties to enter into this Agreement or the conduct and operations of the business and properties of the Loan Parties.other Capital Protection Document to which they are party; and
(m) The Borrower shall have received (i) the proceeds registration statement of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers Fund shall have been fully disclosed to filed with the Agent Commission and become effective, (ii) the investment policies and objectives of the Fund as described in the Prospectus contained in such registration statement and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk description of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) Capital Protection Provider and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Capital Protection Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit)in such Prospectus shall, in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganizationcase, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent the Agent shall have determined in its reasonable discretion that any modifications to such Lender for approvalProspectus from the draft most recently filed with the Commission prior to the date of this Agreement do not materially change the rights of the Capital Protection Provider under, consent or the terms of, this Agreement. Upon receipt the satisfaction were acceptable of all documentary conditions precedent and its reasonable satisfaction that all non-documentary conditions precedent have been satisfied on or before [—], each of the Fund and the Capital Protection Provider will confirm in writing to the other that the conditions precedent have been satisfied, and upon such Lenderwritten confirmation thereof from the Fund and the Capital Protection Provider on or before [—], the Closing Date shall occur; provided, that such confirmation shall not constitute a waiver of any non-documentary condition that was not satisfied, and the non-defaulting Party shall be entitled to exercise any rights it may have hereunder or under applicable Law arising out of the failure of such condition.
Appears in 2 contracts
Sources: Capital Protection Agreement (Janus Aspen Series), Capital Protection Agreement (Janus Investment Fund)
Conditions Precedent to Closing. Date This The effectiveness of this Agreement shall become effective at such time as is subject to and conditioned on the satisfaction of each of the following conditions precedent having been satisfied in a manner satisfactory (or waiver by the Party entitled to the Agent benefit of such condition precedent) (the time of such satisfaction or waiver of all of the following conditions is referred to herein as the “Closing”), and thereafter this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. ▇▇▇▇▇▇ agrees that the failure to satisfy any of the conditions set forth in this Agreement shall in no way affect or impair the case obligations of any documents, agreements Party or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent construed as a waiver by any Party of any of Broadridge’s rights under any of the Majority Lenders to the extent required in clauses (a) through (w) hereof MSA Documents or Section 13.2(a)(ii) hereof:hereunder.
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders Broadridge shall have received such opinions of counsel (concerning, among other things, entry each of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.following:
(i) The Agent shall have this Agreement, duly authorized, executed and delivered by PWI, PFSC and PFSI;
(ii) written confirmation from ▇▇▇▇▇▇, in a form reasonably acceptable to Broadridge, that the Acquisition Transaction has closed;
(iii) written confirmation from ▇▇▇▇▇▇, in a form reasonably acceptable to Broadridge, that ▇▇▇▇▇▇ consents to Broadridge’s entry into the New Services Agreement with Ridge concerning the Transferred Accounts;
(iv) written confirmation from ▇▇▇▇▇▇ that Newco has received a copy of all expected equity contributions from Apex Clearing Solutions LLC (or an affiliate thereof);
(v) the certificate or articles of incorporation or New Services Agreement, fully executed, authorized and delivered by Ridge; and
(vi) such other constitutive agreements, documents, in each case amended to date, of each of the Loan Parties, certified instruments and certificates as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be Broadridge may reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) request related to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated therebyAcquisition Transaction.
(qb) The terms of all sourcing arrangements among the Loan Parties and their suppliers ▇▇▇▇▇▇ shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk received each of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (following or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization following shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.(as applicable):
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such LenderAgreement, duly authorized, executed and delivered by Broadridge;
(ii) the decision of such Lender to execute and deliver written confirmation from Broadridge that it consents to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and Acquisition Transaction; and
(iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderthe Acquisition Transaction has closed.
Appears in 2 contracts
Sources: Termination and Mutual Release Agreement (Broadridge Financial Solutions, Inc.), Termination and Mutual Release Agreement (Penson Worldwide Inc)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as A. Conditions to the Obligations of Each of the Parties. The obligation of each of the parties hereto to consummate the transactions provided for herein is subject to the fulfillment on or prior to the Effective Time of each of the following conditions precedent having conditions:
1. The shareholders of Franklin shall have duly approved the Merger and the plan of merger contained within this Agreement in accordance with and as required by law and in accordance with Franklin's Charter and Bylaws.
2. All necessary governmental and regulatory orders, consents, clearances and approvals and requirements shall have been secured and satisfied in a manner satisfactory for the consummation of such transactions, including without limitation, those of the Federal Reserve System, the Ohio Division of Financial Institutions, the OCC and the Federal Deposit Insurance Corporation to the Agent (and extent required and, in the case of Fifth Third's obligation, none of such orders, consents, clearances and approvals and requirements shall be subject to a Burdensome Condition.
3. Any waiting period mandated by law in respect of the final requisite approval by any documents, agreements applicable Regulatory Agency of the transaction contemplated herein shall have expired.
4. No order or other deliveries, such documents, agreements and deliveries injunction of any federal or state agency or court shall be in form and substance satisfactory effect preventing, prohibiting or enjoining the transactions contemplated by this Agreement.
5. Fifth Third shall have registered its shares of Fifth Third Common Stock to be issued to the Agent), in each case Franklin shareholders hereunder with the consent SEC pursuant to the Securities Act, and with all applicable state securities authorities. The registration statement with respect thereto shall have been declared effective by the SEC and all applicable state securities authorities and no stop order shall have been issued and be continuing. The shares of Fifth Third Common Stock to be issued to the Franklin shareholders hereunder shall have been authorized for trading on the Nasdaq National Market upon official notice of issuance.
B. Additional Conditions to the Obligations of Fifth Third and Fifth Third Financial. The obligation of Fifth Third and Fifth Third Financial to consummate the transactions provided for herein is subject to the fulfillment at or prior to the Effective Time of each of the Majority Lenders following additional conditions unless waived by Fifth Third in a writing delivered to Franklin which specifically refers to the extent required in clauses (a) through (w) hereof condition or Section 13.2(a)(ii) hereofconditions being waived:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All 1. The representations and warranties made hereunder and in the other Loan Documents of Franklin contained herein shall be true and correct both as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and (except to the other Loan Documents to which it is a party extent such representations and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles warranties speak as of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (Dan earlier date) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent 2. Franklin shall have performed all of the obligations required of it under the terms of this Agreement in all material respects.
3. Fifth Third shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed from Franklin, executed by a Responsible Officer of the Borrowerits chief executive officer and chief financial officer, dated the Closing Date, certifying to each of such effectofficers' best knowledge and belief that the conditions set forth in Section VI.B.1. Execution and delivery VI.B.2. have been satisfied.
4. No investigation or action by any state or federal agency shall have been threatened in writing or instituted seeking to enjoin or prohibit or unwind the transactions contemplated hereby and no governmental action or proceeding shall have been threatened or instituted before any court or governmental body or authority, seeking to enjoin or prohibit or unwind, the transactions contemplated hereby or seeking to impose material sanctions or penalties as a result thereof (other than investigations, actions and proceedings which have been withdrawn prior to the Agent Closing without a Material Adverse Effect on Fifth Third or Franklin, and other than regularly scheduled regulatory examinations).
5. At or prior to the Effective Time, Fifth Third shall have entered into written employment, severance and/or non-competition agreements with each of (a) ▇▇▇▇▇▇ ▇▇▇▇▇, (b) ▇▇▇▇▇ ▇▇▇▇▇, (c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, (d) ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., and (e) ▇▇▇▇ ▇▇▇▇▇▇▇▇ on terms satisfactory to Fifth Third and each of the foregoing individuals.
(a) In consideration of the consummation of the Merger, each of the Directors of Franklin and Bank Subsidiary (except those persons who enter into an agreement as required by VI.B.5 above) shall receive a Lender cash payment from Fifth Third in the amount of $5,000, and each Director of Franklin (except those persons who enter into an agreement as required by VI.B.5 above) shall have executed and delivered to Fifth Third an agreement by which the Directors shall agree for a counterpart period of this Agreement shall be deemed confirmation by such Lender that three years after the Effective Time to refrain from directly or indirectly, whether for his or her own account or for the account of any other person, firm, corporation, or other business organization, (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction states of such LenderKentucky or Tennessee, engage in providing Banking Services (as defined below) as an employee, officer, director, or consultant on behalf of any other business organization who is a competitor of Fifth Third, (ii) provide Banking Services to any Client (as defined below), (iii) make any statement or take any actions that may interfere with Fifth Third's or any Affiliate's business relationships with any Client, (iv) contact either directly or indirectly any Client or otherwise induce or attempt to induce any Client to enter into any business relationship with any person or firm other than Fifth Third or an Affiliate relating to Banking Services of any type, (v) endeavor or entice away from Franklin or Fifth Third any person who the decision Director has actual knowledge that such person is, or was at any time during the period the Director was employed by Franklin or Fifth Third or during the Restricted Period, employed by or associated with Fifth Third or Franklin as an executive, officer, employee, manager, salesperson, consultant, independent contractor, representative or other agent, or (vi) take any actions that may interfere with Fifth Third's property rights in lists of Clients or otherwise diminish the value of such Lender lists to execute and deliver Fifth Third. Notwithstanding any provision contained in this Section 6, the restrictions contained herein shall not be applicable to any activity of the Agent an executed counterpart Director or any activity of his or her spouse which existed at the time of this Agreement and which was made disclosed by such Lender independently and without reliance on the Agent or any other Lender as Director to the satisfaction of any condition precedent set forth in this Section 10.1Fifth Third, and (iii) all documents sent may be waived by Fifth Third with respect to such Lender for approval, consent one or satisfaction were acceptable more Directors in writing at any time and from time to such Lendertime in Fifth Third's sole discretion after receipt of a written request from any Director.
Appears in 2 contracts
Sources: Affiliation Agreement (Fifth Third Bancorp), Affiliation Agreement (Fifth Third Bancorp)
Conditions Precedent to Closing. Date This Agreement 4.1 The obligation of Rogers to complete the transactions referred to above is conditional on the following:
(A) the representations and warranties of @Home set out in Part 5 below shall become effective be true on the closing date as if made at and as of such time as date;
(B) Obtaining the following conditions precedent having been satisfied approval of the board of directors of Rogers on or before March 17,1997;
(C) No action or proceeding shall be pending or threatened by any person, company, firm, governmental authority, regulatory body or agency to enjoin or prohibit the purchase by Rogers or the sale by @Home of the Series C Shares and the Warrants or the grant of the Licenses to Rogers;
(D) As part of the closing procedures regarding the transactions contemplated herein, @Home shall execute and deliver the form of stock purchase agreement distributed in connection with @Home's Series C Convertible Preferred Stock offering for the purchase of the Series C Shares and the Warrants and related documents providing the customary representations and warranties and covenants generally provided to a manner satisfactory purchaser of shares from an issuer provided that the form of stock purchase agreement and other definitive documents for the sale and issuance of the Series C Shares and the Warrants are subject to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent final approval of the Majority Lenders Board of Directors of Rogers;
(E) Rogers shall have completed its due diligence to the extent required set out in clauses paragraph 2.8 above and the due diligence shall not have revealed any fact, matter, omission or misstatement of such a material nature as to lead a prudent person operating an Internet Service in circumstances similar to those of Rogers and involved in a transaction such as the one contemplated herein to conclude in its own best interests, that the transaction should not be completed; and
(aF) through (w) hereof or Section 13.2(a)(ii) hereofSimultaneously with the closing of the transactions set out herein by Rogers, Shaw shall complete its obligations set out herein.
4.2 The obligation of Shaw to complete the transactions referred to above is conditional upon:
(aA) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and of @Home set out in the other Loan Documents Part 5 below shall be true and correct as of the Closing Date on closing date as if made on at and as of such date (both immediately prior to, and after giving effect to, such extension of credit).date;
(cB) Obtaining the approval of the board of directors of Shaw on or before March 17, 1997;
(C) No Default action or Event of Default proceeding shall exist on be pending or threatened by any person, company, firm, governmental authority, regulatory body or agency to enjoin or prohibit the Closing Date, or would exist after giving effect to the Loans to be made on such date purchase by Shaw or the Letters sale by @Home of Credit to be issued the Series C Shares and the Warrants or the Credit Support grant of the Licenses to be provided on such date.Shaw;
(dD) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry As part of the order confirming closing procedures regarding the Plan transactions contemplated herein, @Home shall execute and deliver the form of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred stock purchase agreement distributed in connection with any @Home's Series C Convertible Preferred Stock offering for the purchase of the Loan Documents Series C shares and the transactions contemplated thereby, including, without limitation pursuant Warrants and related documents providing the customary representations and warranties and covenants generally provided to a purchaser of shares from an issuer provided that the form of stock purchase agreement and other definitive documents for the sale and issuance of the Series C Shares and the Warrants are subject to the Fee Letterfinal approval of the Board of Directors of Shaw;
(E) Shaw shall have completed its due diligence to the extent set out in paragraph 2.8 above and the due diligence shall not have revealed any fact, matter, omission or misstatement of such a material nature as to lead a prudent person operating an Internet Service in circumstances similar to those of Shaw and involved in a transaction such as the one contemplated herein to conclude in its own best interests, that the transaction should not be completed; and
(F) Simultaneously with the closing of the transactions set out herein by Shaw, Rogers shall complete its obligations set out herein.
4.3 The obligation of @Home to complete the transactions referred to above is conditional upon:
(fA) To Obtaining the approval of the board of directors of @Home on or before March 20, 1997;
(B) No action or proceeding shall be pending or threatened by any person, company, firm, government authority, regulatory body or agency to enjoin or prohibit the purchase by Rogers or Shaw or the sale by @Home of the Series C Shares and the Warrants or the grant of the Licenses to Rogers and Shaw;
(C) Home shall have completed its due diligence to the extent set out in paragraph 2.8 above and the due diligence shall not previously provided under have revealed any fact, matter, omission or misstatement of such a material nature as to lead a prudent person operating an Internet Service in circumstances similar to those of @Home and involved in a transaction such as the DIP Loan Agreementone contemplated herein to conclude in its own best interests, 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 Agreement.transaction should not be completed;
(gD) The Agent the representations and warranties of Rogers and Shaw set out in Part 5 below shall be true on the Lenders shall have had an opportunity, closing date as if they so choose, to examine made at and as of such date;
(E) Simultaneously with the books of account and other records and files closing of the Loan Parties transactions set out herein by @Home, Rogers and to make copies thereof, and to conduct a pre-closing audit which Shaw shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.complete their respective obligations set out herein; and
(hF) All proceedings taken As part of the closing procedures regarding the transaction contemplated herein, Rogers and Shaw shall execute and deliver the form of stock purchase agreement distributed in connection with @Home's Series C Convertible Preferred Stock offering for the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy purchase of the certificate or articles Series C Shares and Warrants and related documents providing customary representations and warranties and covenants generally provided by a purchaser to an issuer of incorporation or other constitutive documentsshares, in each case amended to date, of each provided that the definitive documents for the sale and issuance of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official Series C Shares and related documents of the state or other jurisdiction Warrants are subject to final approval of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party@Home's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as prior to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretaryclosing.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 2 contracts
Sources: Term Sheet (At Home Corp), Term Sheet (At Home Corp)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as on the date (“Closing Date”) that each of the following conditions precedent having has been satisfied (or waived in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case accordance with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:this Agreement):
(a) This Agreement and the other Each Loan Documents Document shall have been duly executed and delivered to Administrative Agent by each party thereto of the signatories thereto, and each Loan Party Obligor shall have performed and complied be in compliance with all covenants, agreements and conditions contained herein and in the other terms of each Loan Documents Document to which are required to be performed or complied with by such Loan Party before or on such Closing Dateit is a party.
(b) All representations and warranties made hereunder and Administrative Agent shall have received (i) acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, or arrangements reasonably satisfactory to Administrative Agent for such filings and recordations shall have been made (and all filing and recording fees and taxes in connection therewith shall have been duly paid or arrangements reasonably satisfactory to Administrative Agent for the payment of such fees and taxes shall have been made), and (ii) subject to Section 10.1.15, UCC and Lien searches and termination documents or other Loan Documents evidence reasonably satisfactory to Administrative Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Administrative Agent shall be true have received Lien Waivers with respect to any location where Eligible Spare Parts Inventory is held (other than Inventory located at customer locations in the Ordinary Course of Business); provided that no such Lien Waiver is required so long as a Rent and correct Charges Reserve has been deducted from the Borrowing Base in respect of such Eligible Spare Parts Inventory.
(d) Subject to Section 10.1.15, Administrative Agent shall have received duly executed Deposit Account Control Agreements on each Deposit Account (other than an Excluded Account and the Secured Notes Collateral Account) (i) that is a collections account and (ii) as required by Section 8.6, Securities Account Control Agreements and agreements establishing each Dominion Account and, if applicable, related lockbox, in form and substance reasonably satisfactory to Administrative Agent.
(e) Administrative Agent shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Senior Officer of the Company certifying that, as of the Closing Date, after giving effect to the Transactions (including, without limitation, any initial Loans made or Letters of Credit issued or Existing Letters of Credit deemed issued hereunder on the Closing Date), the Company and its Subsidiaries, taken as a whole, are Solvent.
(f) Administrative Agent shall have received a certificate of a duly authorized Senior Officer of each Obligor, certifying as of the Closing Date (i) that attached copies of such Person’s Organizational Documents, as if made on such date (both immediately prior toapplicable, are true and complete, and after giving effect toin full force and effect, without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such extension resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the title, name and signature of credit)each Person authorized to sign the Loan Documents on behalf of such Person, as applicable. Administrative Agent may conclusively rely on this certificate until it is otherwise notified by such Person in writing.
(cg) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Administrative Agent and the Lenders shall have received such opinions a written opinion of counsel (concerning▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Administrative Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Administrative Agent shall have received a copy copies of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, charter documents of each of the Loan PartiesObligor, certified as of a recent date by the Secretary of State or other appropriate official of such Person’s jurisdiction of organization. Administrative Agent shall have received good standing certificates for each Obligor, issued by the state Secretary of State or other appropriate official of such Person’s jurisdiction of its organization and dated as of a reasonably recent date; .
(i) Subject to Section 10.1.15, Administrative Agent shall have received certificates of insurance for the insurance policies carried by Obligors reasonably satisfactory to Administrative Agent, as well as all necessary endorsements naming Administrative Agent as an additional insured and lender loss payee with respect to the Collateral, as the case may be, all in compliance with the Loan Documents.
(j) No event shall have occurred or circumstance exist since December 31, 2017 that has or would reasonably be expected, either individually or in the aggregate, to have a certificate Material Adverse Effect.
(k) Borrowers shall have paid all reasonable and documented costs and expenses of the Secretary Lead Left Arranger, Administrative Agent and Lenders (including, without limitation, reasonable and documented fees (including such fees agreed upon in the Engagement Letter), disbursements and other charges of one firm of counsel for Administrative Agent, the Lead Left Arranger and their Affiliates, due diligence expenses, the costs of lender meetings, and the audit and appraisal fees and expenses (including, without limitation, reasonable and documented costs and expenses for travel, lodging and meals for personnel, out-of-pocket examination costs and customary charges for field examinations and the preparation of reports) for Administrative Agent) for which invoices with reasonable detail and supporting documentation have been presented at least 1 Business Day prior to the Closing Date.
(l) Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to it, of a duly authorized Senior Officer of each Borrower certifying that, as of the Loan PartiesClosing Date, dated upon the Borrowing of Loans, giving effect to the issuance or deemed issuance of Letters of Credit, and the payment by Borrowers of all fees and expenses incurred in connection herewith and therewith, as well as any payables stretched beyond their customary payment practices, on the Closing Date Excess Availability (based on the Borrowing Base Report described in clause (r) below) shall be at least $10,000,000.
(m) Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to it, of a duly authorized Senior Officer of each Obligor, certifying that, as of the Closing Date, the conditions specified in Sections 6.1(s) and (u) and Sections 6.2(a) and (b) are satisfied.
(n) Administrative Agent and Lenders shall have received (i) pro forma consolidated financial statements of the Company and its Subsidiaries and consolidating financial statements of the Borrowers, in each case, giving effect to the initial funding of Loans, issuance of Letters of Credit and the funding of the Secured Notes on or before the Closing Date, (ii) forecasts prepared by management of the Borrowers (each in form reasonably satisfactory to Administrative Agent and the Lenders, and evidencing Borrowers’ ability to comply with the financial covenant set forth in Section 10.3) of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Closing Date and certifying on an annual basis for each year thereafter during the term of this Agreement, (Aiii) that attached thereto is a true Audited Financial Statements, (iv) the unaudited consolidating financial statements of the Borrowers as of and complete copy for each Fiscal Year ended December 31, 2017, December 31, 2016 and December 31, 2015 and (v) unaudited consolidated financial statements of such Loan Party's By-laws as the Company and its Subsidiaries and consolidating financial statements of the Borrowers, in effect on each case, for the date Fiscal Quarter ended March 31, 2018.
(o) Administrative Agent and Lenders shall be reasonably satisfied with the capital structure of such certificate the Company and its Subsidiaries.
(p) Each Lender shall have received internal credit approval for the extension of credit under this Agreement.
(q) (i) Administrative Agent shall have received, at all times since a date least 3 Business Days prior to the date Closing Date, all documentation and other information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested in writing at least 5 Business Days prior to the Closing Date by Administrative Agent or any Lender; (ii) at least 3 Business Days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to Administrative Agent and each Lender that so requests in writing at least 5 Business Days prior to the Closing Date, a Beneficial Ownership Certification in relation to such Borrower and (iii) Administrative Agent shall have received reasonably satisfactory background checks on key members of management of each Borrower.
(r) Administrative Agent shall have received a Borrowing Base Report dated as of May 31, 2018 in form and substance reasonably satisfactory to it, including aging reports for the Eligible Accounts Receivable.
(s) There is no action, suit, investigation, litigation or proceeding pending or, to the knowledge of the resolution described Borrowers, threatened in item any court or before any arbitrator or Governmental Authority that (Ba) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (either individually or in the case aggregate, would reasonably be expected to have a Material Adverse Effect or (b) relates to this Agreement, any other Loan Document or any Transaction.
(t) Administrative Agent shall have received a certificate, in form and substance reasonably satisfactory to it, of a Loan Party that is not a corporationduly authorized Senior Officer of each Obligor, the equivalent governing body(i) authorizing either (x) attaching copies of all consents and approvals required in connection with the execution, delivery and performance of this Agreement by any Obligor and the other validity against any such Obligors of the Loan Documents to which it is a party party, and that such resolution has not been modified, rescinded or amended consents and is approvals shall be in full force and effect, or (Cy) certifying that no such Loan Party's certificate consents, licenses or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, approvals are so required and (Dii) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and certifying no law or regulation shall be is applicable in the judgment of the Agent that restrainscould restrain, prevents prevent or imposes materially impose any material adverse conditions upon any of on the Loan Documents or any of the transactions contemplated therebyObligors.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(tu) After giving effect to the making of any loans under this Agreement (including Transactions, neither the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties Company nor its Subsidiaries shall have minimum Combined Availability of at least $25,000,000any Material Debt for borrowed money other than (i) the Secured Notes, (ii) the Senior Notes and (iii) this Agreement.
(uv) The Borrower's Plan of Reorganization and Lenders shall have received the order of the Bankruptcy Court confirming such Plan of Reorganization shall fees required to be reasonably satisfactory in form and substance to the Agentpaid under Section 3.2.4. Without limiting the generality of the foregoingprovisions of Section 13.3, the capital structure for purposes of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of determining compliance with the conditions precedent specified in this Section 6.1, each Lender and Issuing Bank that has executed and delivered (and, as applicable, released from escrow) its signature page to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that to (i) all conditions precedent in this Section 10.1 have been fulfilled consented to, approved or accepted or to the satisfaction of such Lenderbe satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender and Issuing Bank and (ii) have received internal credit approval for the decision extension of credit under this Agreement, in each case, unless Administrative Agent shall have received notice from such Lender to execute and deliver or Issuing Bank prior to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (CSI Compressco LP), Loan and Security Agreement (CSI Compressco LP)
Conditions Precedent to Closing. Date This All obligations of Acquired Company and Purchaser under this Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory are subject to the Agent (and in the case of any documentsfulfillment, agreements on or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory prior to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified following conditions:
8.1. That the representations of Purchaser and Acquired Company shall be true at and as of the closing date as though such representations were made at and as of such time;
8.2. That Purchaser shall have received a recent date by written opinion, dated on the Secretary closing date, of State or other appropriate official counsel representing the Acquired Company, to the effect that the Acquired Company has been duly incorporated and is in good standing under the laws of the state or other jurisdiction State of its organization with a capitalization as represented in this Agreement; that the Acquired Company is duly licensed or qualified to do business in any and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as all States or jurisdictions in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (which it does business or where in the case opinion of a Loan Party that Counsel such qualification is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and required; that such resolution has not been modifiedcounsel knows of no litigation, rescinded investigation, or amended and is governmental proceeding pending or threatened against the Acquired Company which might result in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position condition of the Loan Parties as determined by Acquired Company or in any liability on the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations part of the business Acquired Company; and properties that the assignment and delivery of the Loan Parties.Shares of the Acquired Company pursuant to this Agreement will vest in Purchaser all right, title and interest in and to such Shares, free and clear of all liens, encumbrances and equities;
(m) The Borrower 8.3. That Purchaser shall have received a certificate dated on the proceeds closing date and signed by the President of the Term Debt and Acquired Company, that since the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form date of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law Acquired Company has not done or regulation shall permitted to be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon done any of the Loan Documents acts or any of the transactions contemplated thereby.things prohibited by this Agreement;
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers 8.4. That no claim or liability not fully covered by insurance shall have been fully disclosed asserted against the Purchaser or the Acquired Company nor has either party suffered any loss on account of fire, flood, accident or other calamity of such a character as to the Agent and the Lenders and there materially adversely affect their financial condition, regardless of whether or not such loss shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangementsinsured.
(r) There 8.5. That all covenants and indemnification's made herein by Purchaser and by the Acquired Company which are to be performed at or prior to closing shall have been delivered to duly performed;
8.6. That at the Agent such additional instruments and documents as time of closing the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan Common Stock of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent Purchaser shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making subject of any loans under this Agreement (including investigation or inquiry by the rollover of Loans under the DIP Loan Agreement)Securities and Exchange Commission, the payment National Association of all fees Securities Dealers, and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent State or satisfaction were acceptable to such LenderFederal regulatory body.
Appears in 2 contracts
Sources: Purchase and Sale of Stock Agreement (Atlantic International Entertainment LTD), Purchase and Sale Agreement (Atlantic International Entertainment LTD)
Conditions Precedent to Closing. Date This Agreement shall become effective The obligation of the Investor hereunder to purchase the Note at such time as the Closing is subject to the satisfaction, at or before the date of the Closing, of each of the following conditions, provided that these conditions precedent having been satisfied are for the Investor’s sole benefit and may be waived by the Investor at any time in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:its sole discretion.
(a) This Agreement The Representations and Warranties of the other Loan Documents have been executed by each party thereto Company are true and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Datecorrect.
(b) All representations and warranties made hereunder and No event shall have occurred since the date of this Agreement that could result in, or reasonably be expected to result in a Material Adverse Effect, where “Material Adverse Effect” shall mean any condition, circumstance, or situation that may result in, or would reasonably be expected to result in (i) a material adverse effect on the other Loan Documents shall be true and correct as legality, validity or enforceability of this Agreement or the Note, (collectively, the “Transaction Documents”), (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Closing Date as if made Company, or (iii) a material adverse effect on such date (both immediately prior to, and after giving effect to, such extension of credit)the Company or it’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document.
(c) No Default The shares of the Company’s common stock (the “Common Stock”) shall be authorized for quotation or Event of Default shall exist trading on the Closing Date, or would exist after giving effect to OTC Markets OTCQB (the Loans to be made on such date or “Primary Market”) and trading in the Letters common stock of Credit to be issued or the Credit Support to be provided on such dateCompany shall not have been suspended for any reason.
(d) The Agent Company is, and has been for a period of at least 90 days immediately prior to the Lenders shall have received such opinions Closing, subject to the reporting requirements of counsel (concerning, among other things, entry section 13 or 15(d) of the order confirming Securities Exchange Act of 1934 (the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel“Exchange Act”).
(e) The Borrower shall have paid all fees and expenses of Standby Equity Distribution Agreement dated February 27, 2020 between the Agent Company and the Attorney Costs incurred in connection with any of Investor (the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f“SEDA”) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(jf) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities Company’s registration statement on Form S-3 (File No. 333-232614) under Section 5 of the state or other jurisdiction Securities Act of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business1933, operationsas amended, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to promulgated thereunder (the conduct and operations “Securities Act”) or another registration statement on a form promulgated by the SEC for which the Company then qualifies for the registration of the business offer and properties sale of securities to be offered and sold by the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (includingCompany, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably same may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating be amended and supplemented from time to the confirmation order shall have expired, time and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of including any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be information deemed to be a representation part thereof pursuant to Rule 430B under the Securities Act and warranty made any successor registration statement filed by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, Company with the same effect as delivery to SEC under the Agent Securities Act on a form promulgated by the SEC for which the Company then qualifies and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement which form shall be deemed confirmation available for the registration securities to be offered and sold by such Lender that the Company, shall be effective (i) all conditions precedent in this Section 10.1 have been fulfilled to collectively the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender“Registration Statement”).
Appears in 2 contracts
Sources: Note Purchase Agreement (KULR Technology Group, Inc.), Note Purchase Agreement (KULR Technology Group, Inc.)
Conditions Precedent to Closing. 10.1 The obligations of RM Eastview under this Agreement to assign the Ground Lease and to perform the other covenants and obligations to be performed by RM Eastview on or before the Closing Date This Agreement shall become effective at such time as be subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case all or any of any documents, agreements or other deliveries, such documents, agreements and deliveries shall which may be in form and substance satisfactory to the Agent)waived, in each case with the consent of the Majority Lenders to the extent required whole or in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:part, by RM Eastview):
(a) This Agreement The representations and warranties made by ▇▇▇▇-▇▇▇▇ herein shall be true and correct in all material respects with the other Loan Documents have same force and effect as though such representations and warranties had been executed by each party thereto made on and each Loan Party as of the Closing Date;
(b) RM Eastview shall have performed all covenants and obligations undertaken by RM Eastview herein in all respects and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party it on or before or on such the Closing Date; and
(c) ▇▇▇▇-▇▇▇▇ shall have delivered to RM Eastview all of the documents provided herein for said delivery.
10.2 The obligations of ▇▇▇▇-▇▇▇▇ to assume the Ground Lease and to perform the other covenants and obligations to be performed by ▇▇▇▇-▇▇▇▇ on or before the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by ▇▇▇▇-▇▇▇▇):
(a) RM Eastview shall have taken, at its sole cost and expense and in a manner reasonably satisfactory to ▇▇▇▇-▇▇▇▇, such necessary action (including but not limited to subdivision of the Land, if required) to cause the Property to be assessed as a separate tax lot;
(b) All The County shall have duly executed, acknowledged and delivered to ▇▇▇▇-▇▇▇▇ a landlord estoppel certificate as provided for in Section 22.1 of the Ground Lease;
(c) The survey of the Property shall include a certification to ▇▇▇▇-▇▇▇▇ and its successors and assigns;
(d) The representations and warranties made hereunder and in the other Loan Documents by RM Eastview herein shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.;
(e) The Borrower RM Eastview shall have paid performed all fees covenants and expenses of obligations undertaken by RM Eastview herein in all respects and complied with all conditions required by this Agreement to be performed or complied with by it on or before the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.Closing Date;
(f) To The Title Company is unconditionally prepared to issue a Title Policy meeting the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, requirements for an "insurable title" as set forth in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.Section 3.3 hereof;
(g) The Agent and the Lenders Property shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent be in compliance with all respects.Environmental Laws;
(h) All proceedings taken in connection with There shall not be any sewer moratorium affecting the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.Property; and
(i) The Agent RM Eastview shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post▇▇▇▇-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that ▇▇▇▇ all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender provided herein for approval, consent or satisfaction were acceptable to such Lendersaid delivery.
Appears in 2 contracts
Sources: Agreement to Assign Ground Lease (Mack Cali Realty Corp), Agreement to Assign Ground Lease (Mack Cali Realty L P)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof The obligations of DISTRIBUTORS and the STOCKHOLDERS under this Agreement shall be and are subject to fulfillment, prior to or Section 13.2(a)(ii) hereofat the Closing, of each of the following conditions:
(ai) This Agreement That PACIFIC's, HOLDINGS' and MANAGEMENT'S representations and warranties contained herein shall be true and correct at the other Loan Documents have been executed by each party thereto time of Closing as if such representations and each Loan Party warranties were made at such time;
(ii) That PACIFIC, HOLDINGS and MANAGEMENT shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before them prior to or on such Closing Date.at the time of the Closing;
(biii) All That DISTRIBUTORS shall have received a legal opinion from counsel to HOLDINGS and PACIFIC that the representations and warranties made hereunder contained in Sections 3(a), (b), (g), (j), and in the other Loan Documents shall be (p), and Sections 4(a), (b), (c) (d) and (e) are true and correct as of the Closing Date as if made on such date (both immediately prior toDate, and after giving effect to, such extension that the actions described in Section 6(a)(iv) and Section 6(a)(v) herein can be effected without approval of credit).PACIFIC's stockholders;
(civ) No Default or Event That PACIFIC shall have made all necessary filings and given all necessary notices, including without limitation the notice of Default shall exist on the Closing Datereverse split required by Rule 10b-17 under that Act, or would exist after giving effect and the notice to its stockholders of the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.transactions referenced herein;
(dv) The Agent That PACIFIC's Board of Directors, by proper and the Lenders sufficient vote, shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents approved this Agreement and the transactions contemplated therebyhereby; previously consummated approved the reverse split of PACIFIC's outstanding Common Stock without changing either the authorized shares or the par value; approved the resignation of all of PACIFIC's current directors and the election of up to five designees of DISTRIBUTORS to serve as directors in place of PACIFIC's current directors; and will have approved such other changes as are consistent with this Agreement and approved by DISTRIBUTORS; and
(vi) That HOLDINGS' Board of Directors and Shareholder, includingby proper and sufficient vote, without limitation pursuant shall have approved this Agreement and the transactions contemplated hereby; approved the resignation of all of HOLDINGS' current directors and the election of up to the Fee Letterfive designees of DISTRIBUTORS to serve as directors in place of HOLDINGS' current directors; and will have approved such other changes as are consistent with this Agreement and approved by DISTRIBUTORS.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(gb) The Agent obligations of HOLDINGS, PACIFIC and MANAGEMENT under this Agreement shall be and are subject to fulfillment, prior to or at the Lenders shall have had an opportunity, if they so choose, to examine the books Closing of account and other records and files each of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.following conditions:
(i) The Agent That DISTRIBUTORS' and the STOCKHOLDERS' representations and warranties contained herein shall be true and correct at the time of Closing as if such representations and warranties were made at such time; and
(ii) That DISTRIBUTORS and the STOCKHOLDERS shall have received a copy of the certificate performed or articles of incorporation complied with all agreements, terms and conditions required by this Agreement to be performed or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date complied with by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date them prior to or at the date time of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicableClosing; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.and
(jiii) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent That HOLDINGS shall have entered into an Intercreditor Agreement with for delivery at the administrative agent for Closing, the Term Debt substantially in the form of Consulting Agreements attached hereto as Exhibit E hereto.F and Exhibit G.
(niv) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders That no STOCKHOLDER shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of exercised its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit dissenters rights under the Post-Confirmation Agreement on or after the Consummation DateGCL.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Development Corp), Merger Agreement (Pacific Development Corp)
Conditions Precedent to Closing. SECTION 7.1. Conditions to the Company's Obligations. The obligations of the Company with respect to a Purchaser hereunder required to be performed on the Closing Date This Agreement shall become effective be subject to the satisfaction or waiver, at such time as or prior to the Closing, of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This The representations and warranties of such Purchaser contained in this Agreement and the other Loan Documents shall have been executed by each party thereto true and each Loan Party correct when made and, in addition, shall have performed be repeated and complied true and correct in all material respects on and as of the Closing Date with all covenants, agreements the same force and conditions contained herein effect as though made on and in as of the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations Such Purchaser shall have performed in all material respects all obligations and warranties made hereunder agreements, and complied in the other Loan Documents shall all material respects with all covenants contained in this Agreement to be true performed and correct as of complied with by such Purchaser at or prior to the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit)Date.
(c) No Default or Event of Default shall exist on Any applicable waiting period under the Closing Date, or would exist after giving effect HSR Act with respect to the Loans to be made on purchase by such date Purchaser shall have expired or the Letters of Credit to be issued or the Credit Support to be provided on such datebeen terminated.
(d) The Agent and the Lenders Company shall have received such opinions obtained all necessary consents, waivers, authorizations and approvals of counsel (concerning, among all Governmental Authorities and of all other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred Persons required in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Equity Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date consummation of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its SecretaryIssuance.
(je) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent Such Purchaser shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E heretoRegistration Rights Agreement.
(n) SECTION 7.2. Conditions to Each Purchaser's Obligations. The Agent shall obligations of a Purchaser hereunder required to be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after performed on the Closing Date (includingshall be subject to the satisfaction or waiver, without limitationat or prior to the Closing, any subordination or other intercreditor provisions contained therein or applicable thereto).of the following conditions:
(oa) The Agent shall be reasonably satisfied with representations and warranties of the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by Company contained in this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(qi) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed true and correct when made and (ii) shall be (A) in the case of representations and warranties that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects, in the Agent case of clauses (A) and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents B), as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court Closing Date with the same force and effect as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under though made on and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(wb) The Agent Company shall have received performed in all documents material respects all of its obligations, agreements and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent covenants contained in this Agreement to be filed, registered, published performed and complied with at or recorded prior to create or perfect the first priority Liens intended to be created Closing Date.
(c) The Company shall have entered into the Registration Rights Agreement.
(d) The Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware.
(e) Any applicable waiting period under the Loan Documents and all HSR Act with respect to the purchase by such documents and instruments Purchaser shall have expired or been so filed, registered, published or recorded terminated.
(f) The Company shall have delivered to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of Purchaser a certificate signed executed by it or on its behalf by a Responsible Officer of the Borrowerduly authorized representative, dated the Closing Date, to such effect. Execution and delivery the effect that each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied.
(g) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(h) Such Purchaser shall have received an opinion of counsel to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by Company, dated the Closing Date, and addressed to such Lender that Purchaser, in form and substance reasonably acceptable to the Purchaser.
(i) all conditions precedent in this Section 10.1 Such Purchaser shall have been fulfilled received certificates representing the Securities purchased by such Purchaser concurrently with the Company's receipt of the Purchase Price for such Securities.
(j) The Purchaser shall have executed and caused its rights agent to execute the Rights Agreement Amendment.
(k) The Company shall have delivered to the satisfaction HMTF Purchasers a Management Rights Agreement executed by the Company and addressed to the HMTF Funds.
(l) There shall not have occurred (i) any event, circumstance, condition, fact, effect or other matter which has had or could reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of such Lender, operations of the Company and the Subsidiaries taken as a whole or (y) on the ability of the Company and the Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the Issuance contemplated hereby; or (ii) any material disruption of or material adverse change in financial, banking or capital market conditions that would reasonably be expected to materially impair the decision of such Lender Company's ability to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance obtain financing on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderreasonable terms.
Appears in 2 contracts
Sources: Preferred Stock and Warrant Purchase Agreement (Rhythms Net Connections Inc), Preferred Stock and Warrant Purchase Agreement (Hicks Thomas O)
Conditions Precedent to Closing. Date This Agreement Subject to Section 3.02, the obligation of the Lenders hereunder shall become effective at such time as be subject to the following conditions precedent having been satisfied in a manner satisfactory to that the Facility Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed received on or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall requestfollowing, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Facility Agent:
(a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Lenders, Parent and their respective counsel.the Portfolio Manager as in effect on the Closing Date;
(ec) The Borrower shall have paid all fees true and expenses complete copies certified by a Responsible Officer of the Agent Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the Attorney Costs incurred UCC financing statements to be filed pursuant to clause (f) below), if any, required in connection with any the transactions contemplated by this Agreement;
(d) a certificate of a Responsible Officer of the Loan Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of the board of directors of the Parent approving this Agreement and the other Facility Documents to which the Borrower is a party and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (Aiii) that attached thereto is a true its representations and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or warranties set forth in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Facility Documents to which it is a party are true and that correct in all material respects as of the Closing Date (except to the extent such resolution representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has not been modified, rescinded or amended occurred and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovecontinuing, and (Dv) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(e) a certificate of another a Responsible Officer of such Loan Party's officers the Portfolio Manager certifying (i) as to incumbency and signature its Constituent Documents, (ii) as to its resolutions or other action of its Secretary.
(j) The Agent shall have received certificates board of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by directors approving this Agreement and the other Loan Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) to the best of its knowledge, no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor);
(h) legal opinions (addressed to each of the Secured Parties) of (i) Milbank LLP, U.S. counsel to the Borrower and the Portfolio Manager, and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;
(i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been obtainedexecuted and delivered by the Borrower, the Collateral Agent and remain the Custodian and shall be in full force and effect; all applicable waiting periods shall have expired without ;
(j) evidence satisfactory to the Facility Agent that any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment agreements of the Borrower, other than the Facility Documents, have been terminated and all obligations of the Borrower thereunder have been released;
(k) evidence satisfactory to the Facility Agent that restrains, prevents or imposes materially adverse conditions upon any all Closing Date Expenses and outstanding fees and expenses of the Loan Documents or any Collateral Agent have been paid in full;
(l) each of the transactions contemplated thereby.Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(qm) The terms delivery of all sourcing arrangements among the Loan Parties Collateral (including any promissory note, executed assignment agreements and their suppliers copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each initial Collateral Obligation) in accordance with Section 12.20 shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.effected;
(rn) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by of a Responsible Officer of the Borrower, dated as of the Closing Date, to such effect. Execution and delivery the effect that, in the case of each item of Collateral pledged to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:
(i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction Borrower is the owner of such LenderCollateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens;
(ii) the decision of Borrower has acquired its ownership in such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and Collateral in good faith without reliance on the Agent or any other Lender as to the satisfaction notice of any condition precedent set forth adverse claim, except as described in this Section 10.1, and clause (i) above;
(iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;
(iv) the Borrower has full right to grant a security interest in and assign and pledge all of its right, title and interest in such Collateral to the Collateral Agent; and
(v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to Permitted Liens) perfected security interest in the Collateral;
(o) [reserved];
(p) such other opinions, instruments, certificates and documents sent from the Borrower as the Agents or any Lender shall have reasonably requested; and
(q) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Closing Date:
(i) each of the Collateral Quality Tests and the Concentration Limitations is satisfied; and
(ii) with respect to any Collateral Obligation with a Credit Estimate, such Lender Credit Estimate has been assigned by Moody’s, S&P or DBRS within one year prior to the Closing Date or a request for approval, consent an updated Credit Estimate has been submitted by or satisfaction were acceptable to such Lenderon behalf of the Borrower and is pending receipt.
Appears in 2 contracts
Sources: Credit and Security Agreement (BlackRock Private Credit Fund), Credit and Security Agreement (BlackRock Private Credit Fund)
Conditions Precedent to Closing. Date This Each Constituent Corporation’s obligation to consummate the Merger and close the transactions contemplated by this Agreement shall become effective at such time as be subject to the satisfaction of each of the following conditions precedent having been satisfied in a manner satisfactory on or prior to the Agent (and Closing Date by the other Constituent Corporation, unless any such condition is specifically waived in writing by the case of any documents, agreements other Constituent Corporation in whole or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory part at or prior to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofClosing:
(a) This Agreement Each Constituent Corporation shall have duly executed and delivered all documents, instruments, and certificates required to be executed and delivered by it pursuant to the other Loan Documents have been executed by each party thereto and each Loan Party provisions of this Agreement;
(b) Each Constituent Corporation shall have performed and or complied with each and all of the obligations, covenants, agreements agreements, and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before it on or on such prior to the Closing Date.
(b) All representations and warranties made hereunder and in , except where the other Loan Documents shall failure to do so has not had or would not reasonably be true and correct as of expected to constitute a material adverse effect on the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).Constituent Corporations’ ability to consummate the Merger;
(c) No Default or Event Each Constituent Corporation shall have received all necessary approvals regarding its execution of Default shall exist on this Agreement and the Closing Dateconsummation of the transactions contemplated hereunder, or would exist after giving effect to the Loans to be made on such date or the Letters including without limitation all approvals required from its Board of Credit to be issued or the Credit Support to be provided on such date.Directors and members;
(d) The Agent and the Lenders There shall have received such opinions been no Material Adverse Change in the business, results of counsel operations, prospects, condition (concerning, among other things, entry financial or otherwise) or assets of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselConstituent Corporation.
(e) The Borrower Each Constituent Corporation shall have paid made all fees and expenses of filings or recordings with the Agent and Commissioner as required under the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee LetterWisconsin Insurance Law.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent The Constituent Corporations shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 final Commissioner approval of the Loan Parties and to make copies thereofMerger, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, and all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scopetransactions contemplated hereby, and substance to upon the Agent.
(i) The Agent shall have received a copy of Effective Time, the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; Commissioner will deliver a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior authority to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its SecretarySurviving Corporation.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
Conditions Precedent to Closing. Date This Agreement 5.1 Conditions to the Obligations of each Party The respective obligations of the Parties to effect the Closing as provided in Section 6 shall become effective at such time as be subject to the satisfaction or waiver (where permissible) of all of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (Closing Conditions:
a) through All governmental approvals (wother than the approval as set forth in Section 7.1a)) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreementobtained or, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitationwhere relevant, any subordination waiting period under the applicable merger control or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods foreign investment Laws shall have expired without any or been terminated by the competent authorities;
b) No action being taken by shall be pending and no order, injunction or decree of any competent authority; and no law court, administrative body or regulation shall be applicable in arbitration tribunal exists which seeks to enjoin, restrain, impede or levy a substantial difficulty on the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any consummation of the transactions contemplated thereby.hereunder;
(qc) Any stock option plans of any Group Company have been terminated; and
d) The terms employment agreements of all sourcing arrangements among the Loan Parties and their suppliers Key Employees shall have been fully disclosed amended and renewed according to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent form of any liens arising from any such supply arrangementsAnnex 6.2e).
(r) There shall have been delivered to 5.2 Conditions Precedent regarding the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk Obligations of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date Buyer The obligations of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for Buyer regarding the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" performance of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created transactions contemplated under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled subject to the satisfaction or waiver by the Buyer (where permissible) of such Lender, (iiall of the following Closing Conditions:
a) The representations and warranties of the decision of such Lender to execute and deliver to the Agent an executed counterpart of Sellers made in this Agreement was made by such Lender independently are in all respects true and without reliance correct on the Agent date on which these representations and warranties of the Sellers have been made;
b) The Sellers shall have complied in all respects with its obligations and covenants under this Agreement on or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iiibefore Closing; and
c) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderNo Material Adverse Effect shall have occurred.
Appears in 2 contracts
Sources: Share Purchase Agreement (Relief Therapeutics Holding SA), Share Purchase Agreement (Relief Therapeutics Holding SA)
Conditions Precedent to Closing. Date This 4.01 Operating Partnership's obligation under this Agreement shall become effective at such time as to consummate the transactions contemplated herein is subject to the fulfillment of each of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:conditions.
(a) This Agreement The representations and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions warranties of Pilevsky contained herein shall be true, accurate and correct in all material respects as of the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date, except to the extent they expressly relate only to an earlier date.
(b) All representations consents and warranties made hereunder approvals of governmental authorities and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect parties to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents agreements to which it Pilevsky is a party and or by which any asset owned by Pilevsky is bound that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent are required with respect to each Loan Party certified as the consummation of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent obtained and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There copies thereof shall have been delivered to Operating Partnership at or prior to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or requestClosing.
(sc) The Bankruptcy Court On or prior to the Closing Date, (i) Pilevsky shall not have entered an order confirming applied for or consented to the Borrower's Plan appointment of Reorganizationa receiver, which trustee or liquidator for himself or any of his assets unless the same shall have been certified by discharged prior to the Clerk Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (ii) Pilevsky shall not have admitted in writing an inability to pay his debts as they mature, (iii) Pilevsky shall not have made a general assignment for the benefit of the Bankruptcy Court as having been duly entered. Such order creditors, (iv) Pilevsky shall not have been reversed, modified, amended, vacatedadjudicated a bankrupt or insolvent, or stayedhad a petition for reorganization granted with respect to Pilevsky, and(v) Pilevsky shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against him in any proceeding under any such law or statute, or had any petition filed against him in any proceeding under any such law or statute unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization same shall have been met (dismissed, canceled or the waiver thereof shall have been consented terminated prior to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 2 contracts
Sources: Redemption Agreement (Philips International Realty Corp), Redemption Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as upon the satisfaction of the following conditions precedent having been satisfied precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, telecopies or other electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower, if applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a manner satisfactory to recent date before the Agent (Closing Date and in the case of any documentsfinancial statements, agreements the date or other deliveries, period of such documents, agreements financial statements) and deliveries shall be each in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Administrative Agent, the Lenders, and their respective counsel.:
(ei) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution executed counterparts of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory sufficient in form, scope, and substance number for distribution to the Administrative Agent., each Lender and the Borrower;
(iii) The Agent shall have received a copy if so requested within three Business Days of the certificate or articles Closing Date, a Note executed by the Borrower in favor of incorporation each requesting Lender;
(iii) such certificates of resolutions or other constitutive documentsaction, in each case amended to dateincumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each of the Loan Parties, certified Responsible Officer thereof authorized to act as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as Responsible Officer in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of connection with this Agreement and the other Loan Documents to which it the Borrower is a party party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower and General Partner is duly organized or formed, and that such resolution has not been modified, rescinded or amended the Borrower is validly existing and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovein its jurisdiction of organization, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date issued by the appropriate Governmental Authorities authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.jurisdiction;
(v) The Agent shall have received results favorable opinions of searches or other evidence reasonably satisfactory ▇▇▇ ▇▇▇▇▇, Esq., General Counsel for the Borrower, and Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., special Texas and New York counsel to the Agent (in each case dated as of a date reasonably satisfactory Borrower, addressed to the Agent) indicating the absence of Liens on any Collateral Administrative Agent and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.each Lender;
(wvi) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of Audited Financial Statements;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Section 4.03(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the most recent Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) the current Debt Ratings, and (D) the Borrower’s true and correct U.S. taxpayer identification number; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent may reasonably require.
(b) All consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party shall have been obtained and shall be in full force and effect.
(c) Any fees, including any arrangement fees, agency fees and upfront fees, and any expenses of the Arrangers and Administrative Agent, in each case, as agreed in writing by the Borrower, dated required to be paid on or before the Closing Date shall have been paid.
(d) The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, to such effect. Execution and delivery to for purposes of determining compliance with the Agent by a conditions specified in this Section 4.01, each Lender of a counterpart of that has signed this Agreement shall be deemed confirmation 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 that (i) all conditions precedent in this Section 10.1 have been fulfilled prior to the satisfaction of such Lender, (ii) proposed Closing Date specifying its objection thereto and the decision of such Lender Administrative Agent hereby agrees to execute and deliver to promptly provide the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction Borrower with a copy of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lendernotice received by the Administrative Agent.
Appears in 1 contract
Sources: 364 Day Credit Agreement (Plains All American Pipeline Lp)
Conditions Precedent to Closing. Date This The obligations of the Parties under this Agreement shall become effective be and are subject to fulfillment, prior to or at such time as the Closing, of each of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This Agreement That each of the representations and warranties of the other Loan Documents have been executed Parties contained herein shall be true and correct at the time of the Closing Date as if such representations and warranties were made at such time except for changes permitted or contemplated by each party thereto and each Loan Party this Agreement;
(b) That the Parties shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before them prior to or on such Closing Date.at the time of the Closing;
(bc) All representations That CD Media BVI shall have received, and warranties made hereunder and provided a copy to the Company, an opinion of each of the Han Kun Law Offices, CD Media BVI’s counsel in the other Loan Documents People’s Republic of China, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ Media BVI’s legal counsel in the British Virgin Islands, substantially in the forms attached hereto as Exhibit A;
(d) The Company shall have cancelled such number of shares of Common Stock and warrants to purchase shares of Common Stock owned by certain of the Company’s original stockholders to be true and correct cancelled as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect pursuant to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent Amended and the Lenders shall have received such opinions of counsel (concerning, among other things, entry Restated Share and Warrant Cancellation Agreement dated as of the order confirming date of this Agreement entered into by and between the Plan Company and its stockholders (the “Amended and Restated Share and Warrant Cancellation Agreement”), a copy of Reorganization and proper notice having been given) for the Loan Parties which is attached as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.Exhibit B;
(e) The Borrower That prior to Closing the Company shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant engaged a Company-sponsored equity research firm that is mutually acceptable to the Fee Letter.Company and CD Media BVI; and
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent The Company shall have received evidence, in form, scope, and substance, reasonably satisfactory to conducted an initial closing of an equity financing at the Agent, time of all insurance coverage as required by Closing (the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j“Equity Financing”).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Share Exchange Agreement (China Century Dragon Media, Inc.)
Conditions Precedent to Closing. Date This Agreement The consummation of this Plan hereunder shall become effective at such time as be subject to the following conditions precedent having been conditions, to be satisfied in a manner satisfactory prior to or at the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofClosing:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.That:
(bi) All all the representations and warranties made hereunder and in the other Loan Documents contained herein shall be true and correct as of the Closing Date with the same effect as if though made as of and at such date;
(ii) the performance of all obligations required by this Plan to be performed by MFVAT, on such date (both immediately prior tobehalf of the Acquired Funds, and after giving effect toby SAST on behalf of the Acquiring Funds, respectively, shall occur prior to the Closing; and
(iii) each of MFVAT and SAST shall execute and deliver at the Closing a certificate signed by a duly authorized officer of such extension trust to the foregoing effect.
(b) The SEC shall not have issued an unfavorable management report under Section 25(b) of credit)the 1940 Act or instituted or threatened to institute any proceeding seeking to enjoin consummation of the Plan under Section 25(c) of the 1940 Act.
(c) No Default other legal, administrative or Event other proceeding shall have been instituted or threatened that would materially affect the financial condition of Default any Acquired Fund or Acquiring Fund or would prohibit the transactions contemplated hereby.
(d) This Plan shall exist have been approved by a vote of a "majority of the outstanding voting securities," as such term is defined in Section 2(a)(42) of the 1940 Act, of each Acquired Fund at the Meeting or any adjournment thereof; provided, however, that if this Plan shall be so approved as to some, but not all, Acquired Funds, then at the election of SAST, this Plan may be consummated as to those Acquired Funds as to which this Plan has been so approved.
(e) MFVAT shall create and deliver at Closing a statement of assets and liabilities of each Acquired Fund as of the close of trading on the New York Stock Exchange on the Closing Date for the purpose of determining the number of Acquiring Fund shares to be issued pursuant to Section 2 of this Plan, which statement will accurately reflect its Net Assets as of such date, in conformity with generally accepted accounting principles applied on a consistent basis.
(f) SAST shall create and deliver at Closing a statement of assets and liabilities of each Acquiring Fund as of the close of trading on the New York Stock Exchange on the Closing Date for the purpose of determining the number of Acquiring Fund shares to be issued pursuant to Section 2 of this Plan, which statement shall accurately reflect its net assets and outstanding shares of beneficial interest as of such date, in conformity with generally accepted accounting principles applied on a consistent basis.
(g) MFVAT, on behalf of each Acquired Fund, shall have provided for delivery as of the Closing of those Net Assets of each Acquired Fund to be transferred to the account of the corresponding Acquiring Fund at SAST's custodian, State Street Bank and Trust Company (the "Acquiring Fund Custodian"), 225 Franklin Street, Boston, Massachusetts 02110, as follows:
(▇) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ ▇n book entry form in the name of the Acquired Fund's custodian, as record holder for the Acquired Fund, shall be presented by the Acquired Fund to the Acquiring Fund Custodian for examination no later than three business days preceding the Closing Date and, at the Closing, shall be delivered by the Acquired Fund to the Acquiring Fund Custodian for the account of the Acquiring Fund, duly endorsed in proper form for transfer and in such condition as to constitute good delivery thereof in accordance with the customary practice of brokers, and shall be accompanied by all necessary securities transfer stamps; and
(ii) Portfolio securities held of record by the Acquired Fund's custodian in book entry form shall be delivered to the Acquiring Fund by the Acquired Fund's custodian by recording the transfer of beneficial ownership thereof on its records. The Acquiring Fund Custodian shall present at the Closing its written receipt for the portfolio securities of each Acquired Fund.
(h) MFVAT, on behalf of each Acquired Fund, shall have prepared and deliver at the Closing a list of names and addresses of the shareholders of record of its shares and the number of shares of beneficial interest of each Acquired Fund owned by each such shareholder, all as of the close of trading on the New York Stock Exchange on the Closing Date, certified by its transfer agent or would exist after giving effect by its President to the Loans to be made on such date best of its or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent his knowledge and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agentbelief.
(i) The Agent SAST, on behalf of each Acquiring Fund, shall have received a copy prepared satisfactory evidence that each Acquiring Fund's shares to be issued at the Closing have been registered in an account on the books of the certificate or articles Acquiring Fund in such manner as the officers of incorporation or other constitutive documents, in each case amended to date, MFVAT on behalf of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its SecretaryAcquired Fund reasonably shall deem appropriate.
(j) The Agent There shall have received be delivered to SAST and MFVAT an opinion of Jorden Burt LLP, special counsel to SAST, to the effect that, provided ▇▇▇ ▇▇▇▇▇▇▇tions contemplated hereby are carried out in accordance with this Plan, and based upon certificates of good standingthe officers of SAST and MFVAT with regard to matters of fact, existence or its equivalent Contract Owners with respect contract values allocated to each Loan Party certified as the Acquiring and Acquired Funds will not incur any additional tax obligations because of a recent date the reorganization transactions. In the case of the acquisition of MFVAT U.S. Government Income by SAST Cash Management, the transaction, while taxable, will not be taxed because of the tax deferral provided by the appropriate Governmental Authorities variable contracts. Another opinion of counsel will conclude that the other transactions will constitute tax-free reorganizations, and Contract Owners with contract values allocated to the Acquiring and Acquired Funds will not incur any additional tax obligations because of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)reorganization transaction.
(k) There shall be no material adverse change delivered to SAST an opinion, in form and substance reasonably satisfactory to it, of counsel employed or retained by MFVAT (who may be an officer of MFVAT or its investment adviser) with respect to the Acquired Funds to the effect that, subject in all respects to the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws now or hereafter affecting generally the enforcement of creditors' rights and to general equity principles:
(i) MFVAT is a business trust duly organized under the laws of the Commonwealth of Massachusetts, and is an existing business trust in good standing;
(ii) MFVAT is authorized to issue an unlimited number of shares of beneficial interest of each Acquired Fund, par value $0.001 per share, and such shares have not been divided into classes. Assuming that the initial shares of beneficial interest of Acquired Fund were issued in accordance with the 1940 Act and the Declaration of Trust and By-laws of MFVAT, and that all other outstanding shares of the Acquired Funds were sold, issued and paid for in accordance with the terms of the Acquired Funds' prospectuses in effect at the time of such sales, each such outstanding share is fully paid, non-assessable, freely transferable and has full voting rights;
(iii) Each Acquired Fund is a series of MFVAT, which is an open-end management investment company registered as such under the 1940 Act;
(iv) Such counsel does not know of, and has not made independent inquiry or investigation to ascertain the existence of, any litigation or government proceeding instituted or threatened against MFVAT or any of the Acquired Funds that could be required to be disclosed in the business, operations, assets, properties, liabilities, profits, prospects or financial position applicable Registration Statement and is not so disclosed;
(v) All actions required to be taken by MFVAT on behalf of the Loan Parties Acquired Funds to authorize this Plan and to effect the transactions contemplated hereby have been duly authorized by all necessary action on the part of MFVAT; and
(vi) None of the execution, delivery or performance of this Plan by MFVAT on behalf of the Acquired Funds violates any provision of its Declaration of Trust or By-laws, or the provisions of such other agreement or instruments as determined by are specified in that opinion; this Plan is the Agent legal, valid and binding obligation of MFVAT on behalf of the Majority Lenders Acquired Funds and is enforceable against MFVAT on behalf of the Acquired Funds in accordance with its terms. In giving the opinions set forth above, counsel will rely on certificates of the officers of MFVAT with regard to matters of fact, and certain certifications and written statements of governmental officials with respect to the good standing of MFVAT. With respect to all matters of New York law, such counsel shall be entitled to rely on the opinion of Massachusetts counsel or New York counsel, as applicable, and may state that their sole discretionopinion is subject to the same assumptions, qualifications and limitations with respect to such matters as are contained in the opinion of such Massachusetts counsel or New York counsel, as the case may be.
(l) The Lenders That there shall be fully satisfied delivered to MFVAT an opinion, in form and substance reasonably satisfactory to it, of counsel employed or retained by SAST (who may be an officer of SAST or its investment adviser) with respect to the Acquiring Funds to the effect that, subject in all respects to the effects of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other laws now or hereafter affecting generally the enforcement of creditors' rights:
(i) SAST is a business trust duly organized under the laws of the Commonwealth of Massachusetts, and is an existing business trust in good standing ;
(ii) SAST is authorized to issue an unlimited number of shares of beneficial interest of each Acquiring Fund, without par value. Each Acquiring Fund is further divided into three classes of shares designated as the Acquiring Fund's Class 1, Class 2 and Class 3 shares, and an unlimited number of shares of beneficial interest, without par value, have been allocated and designated to the Acquiring Fund's Class 1 shares. Assuming that the initial shares of beneficial interest of each Acquiring Fund were issued in accordance with the compliance 1940 Act, and the Agreement and Declaration of Trust and By-laws of SAST, and that all other outstanding shares of the Acquiring Funds were sold, issued and paid for in accordance with the terms of the Acquiring Funds' prospectuses in effect at the time of such sales, each such outstanding share of the Acquiring Funds is fully paid, non-assessable, freely transferable and has full voting rights;
(iii) Each Acquiring Fund is a series of SAST, which is an open-end management investment company registered as such under the 1940 Act;
(iv) Such counsel does not know of, and has not made independent inquiry or investigation to ascertain the existence of, any litigation or government proceeding instituted or threatened against SAST or any of the Acquiring Funds that could be required to be disclosed in the applicable Registration Statement and is not so disclosed;
(v) Each Acquiring Fund's shares to be issued pursuant to the terms of this Plan have been duly authorized and, when issued and sold as provided in this Plan for the consideration stated in this Plan, which shall in each event be at least equal to the net asset value per share, they will have been validly issued and fully paid and will be non-assessable, and no shareholder of any Acquiring Fund has any pre-emptive right to subscribe for or purchase those shares;
(vi) All actions required to be taken by SAST on behalf of the Loan Parties with Acquiring Funds to authorize this Plan and to effect the transactions contemplated hereby have been duly authorized by all necessary action on the part of SAST; and
(vii) None of the execution, delivery or performance of this Plan by SAST on behalf of the Acquiring Funds violates any provision of its Agreement and all applicable Declaration of Trust or By-laws, statutesor the provisions of any agreement or other instrument known to such counsel to which SAST is a party or by which SAST is otherwise bound; this Plan is the legal, rules valid and regulations relating binding obligation of SAST on behalf of the Acquiring Funds and is enforceable against SAST on behalf of the Acquiring Funds in accordance with its terms. In giving the opinions set forth above, counsel will rely on certificates of the officers of SAST with regard to matters of fact, and certain certifications and written statements of governmental officials with respect to the conduct and operations good standing of the business and properties of the Loan PartiesSAST.
(m) The Borrower SAST's Registration Statement with respect to the Acquiring Funds' Class 1 shares to be delivered to the Acquired Funds' shareholders in accordance with this Plan shall have received become effective, and no stop order suspending the proceeds effectiveness of the Term Debt and the Agent such Registration Statement or any amendment or supplement thereto, shall have entered into an Intercreditor Agreement with been issued prior to the administrative agent Closing Date or shall be in effect at Closing, and no proceedings for the Term Debt substantially in the form issuance of Exhibit E heretosuch an order shall be pending or threatened on that date.
(n) The Agent That each Acquiring Fund's shares to be delivered hereunder shall be satisfied eligible for sale by SAST with each state commission or agency with which such eligibility is required in order to permit the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements Acquiring Fund's shares lawfully to be delivered to each holder of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto)Acquired Funds' shares.
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Sunamerica Series Trust)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof The obligations of REDCELL and the SELLERS under this Agreement shall be and are subject to fulfillment, prior to or Section 13.2(a)(ii) hereofat the Closing, of each of the following conditions:
(ai) This Agreement That REDCELL's representations and warranties contained herein shall be true and correct at the other Loan Documents have been time of Closing as if such representations and warranties were made at such time, and MANAGEMENT will deliver an executed by each party thereto certification confirming the foregoing;
(ii) That REDCELL and each Loan Party REDCELL's MANAGEMENT shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by them prior to or at the time of the Closing;
(iii) That REDCELL's directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly called and held, shall have properly approved all of the matters required to be approved by REDCELL's directors and shareholders, respectively;
(iv) That REDCELL's Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; approved the change of INFOBOOTH's corporate name to REDCELL POWER CORPORATION; approved the resignation of all of INFOBOOTH's current directors and the election of up to three designees of REDCELL to serve as directors in place of INFOBOOTH's current directors; and will have approved such Loan Party before or on such Closing Date.other changes as are consistent with this Agreement and approved by REDCELL and INFOBOOTH; and
(b) All The obligations of INFOBOOTH and INFOBOOTH'S MANAGEMENT under this Agreement shall be and are subject to fulfillment, prior to or at the Closing of each of the following conditions:
(i) That INFOBOOTH's representations and warranties made hereunder and in the other Loan Documents contained herein shall be true and correct as at the time of the Closing Date as if such representations and warranties were made on at such date (both immediately prior to, time and after giving effect to, such extension of credit).INFOBOOTH shall deliver an executed certification confirming the foregoing;
(cii) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders That INFOBOOTH shall have received such opinions of counsel (concerningperformed or complied with all agreements, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated required by this Agreement to be performed or complied with by them prior to or at the time of Closing; and
(iii) That INFOBOOTH's directors and the other Loan Documents have been obtainedshareholders, by proper and remain in full force sufficient vote taken either by consent or at a meeting duly and effect; all applicable waiting periods properly called and held, shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that properly approved all of the conditions precedent matters required to the making of such Loans or the issuance of such Letters of Credit have been satisfiedbe approved by INFOBOOTH's directors and shareholders, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.respectively;
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement 8.1. Each of Seller and Purchaser shall become effective at such time as use commercially reasonable efforts to timely fulfill those of the following conditions precedent having been satisfied in a manner satisfactory as are its obligation hereunder.
8.2. The obligations of Purchaser to close on the purchase and sale of the Assets are subject to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent satisfaction of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereoffollowing conditions:
(ai) This Agreement and Tender of the other Loan Documents have been documents to be executed by each party thereto and each Loan Party shall have performed and complied with all covenantsSeller as of the Closing, agreements and conditions contained herein and as provided in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing DateSection 9.1 hereof.
(bii) All consents provided in Section 7.3(a), and the Landlord Estoppels provided in Section 7.4, shall have been obtained.
(iii) On the Closing Date, all representations and warranties made hereunder and by Seller in the other Loan Documents this Agreement shall be true and correct as of the Closing Date in all material respects as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(wiv) The Agent Title Company shall be prepared to issue the Title Policies showing Purchaser as owner of the Fee, and as vested in a leasehold interest as to the Restaurant Leaseholds, in each case subject only to such exceptions as are acceptable to Purchaser (the "Permitted Exceptions").
(v) On the Closing Date, Seller shall not be in material default in the performance of any covenant or agreement to be performed by Seller under this Agreement.
(vi) The execution and delivery of this Agreement by Seller, and the performance of its covenants and obligations under it, shall have been duly authorized by all necessary corporation action, and Purchaser shall have received copies of all documents and instrumentsresolutions pertaining to that authorization, including Uniform Commercial Code financing statements, required by law or reasonably requested certified by the Agent secretary of Seller.
8.3. The obligations of Seller to be filed, registered, published or recorded to create or perfect close the first priority Liens intended to be created under purchase and sale of the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded Assets are subject to the satisfaction of the Agent. The acceptance following conditions:
(i) Tender of the Purchase Price, reduced or increased by any credits and adjustments, and tender of the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed documents to be a representation and warranty made executed by the Borrower to the effect that all Purchaser as of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit Closing, as provided in Section 9.1 hereof.
(ii) All consents provided in Section 7.3(a) shall have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated obtained.
(iii) On the Closing Date, to such effect. Execution all representations and delivery to the Agent warranties made by a Lender of a counterpart of Purchaser in this Agreement shall be deemed confirmation by such Lender that true and correct in all material respects as if made on and as of the Closing Date.
(iiv) all conditions precedent On the Closing Date, Purchaser shall not be in this Section 10.1 have been fulfilled to material default in the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction performance of any condition precedent set forth in covenant or agreement to be performed by Purchaser under this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAgreement.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement The Commitments of the Lenders shall not become effective at such time as unless and until (i) the following conditions precedent having been satisfied set forth in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent Section 3.01 of the Majority Lenders to three-year $272,500,000 Credit Agreement, dated as of the extent required date hereof, among the Company, the lenders named therein and Citibank, as administrative agent, shall have been satisfied, (ii) the Existing Facilities shall have been terminated and all amounts outstanding thereunder shall have been paid in clauses full and (aiii) through (w) hereof or Section 13.2(a)(ii) hereofthe Administrative Agent shall have received the following:
(a) This Agreement and the other Loan Documents have been executed Promissory notes, if requested by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required any Lender pursuant to be performed or complied with by such Loan Party before or on such Closing DateSection 2.06.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as Certified copies of the Closing Date as if made on such date (both immediately prior toresolutions of the Board of Directors of the Company approving this Agreement, and after giving effect toof all documents evidencing other necessary corporate action and governmental approvals, such extension of credit)including the NCUC Order and the SCPSC Order, with respect to this Agreement.
(c) No Default A certificate of the Secretary or Event an Assistant Secretary of Default shall exist on the Closing DateCompany, or would exist after giving effect dated as of the date hereof, certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Loans other documents to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such datedelivered hereunder.
(d) The Agent and the Lenders shall have received such opinions A certificate of counsel (concerning, among other things, entry a Responsible Officer of the order confirming Company, dated as of the Plan date hereof, certifying (i) the accuracy of Reorganization the representations and proper notice having been givenwarranties contained herein and (ii) that no event has occurred and is continuing which constitutes an Event of Default or which would constitute an Event of Default but for the Loan Parties as the Agent requirement that notice be given or any Lender shall requesttime elapse, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselor both.
(e) The Borrower shall have paid Certified copies of all fees required governmental approvals and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letterauthorizations.
(f) To Certified copy of the extent not previously provided under restated charter and bylaws of the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the AgreementCompany.
(g) The Favorable opinions of counsel for the Company, substantially in the forms of Exhibit C-1 and Exhibit C-2 hereto and as to such other matters as any Lender through the Administrative 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respectsmay reasonably request.
(h) All proceedings taken in connection with the execution A favorable opinion of this AgreementKing & Spalding, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent counsel for the Term Debt Administrative Agent, substantially in the form of Exhibit E D hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. The effectiveness of the Existing Agreement on the Closing Date This Agreement shall become effective at such time as and the obligations of the parties hereto are subject to the satisfaction of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This the Administrative Agent’s receipt of counterparts of this Agreement executed by the Borrower, the sole Lender and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.Administrative Agent;
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as Administrative Agent’s receipt of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, form and substance to the Agent.
(i) The Administrative Agent shall have received a copy of that the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of Borrower has provided all notices required by ▇▇▇▇▇▇ ▇▇▇ and the Loan Parties, certified as of a recent date by ▇▇▇▇▇▇ ▇▇▇ Acknowledgement Agreement for the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the Borrower’s execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, Agreement;
(Cc) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date all of the last amendment thereto shown on the certificate of good standing furnished hereinabove, representations and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities warranties of the state or other jurisdiction of incorporation or organization and Borrower contained in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Transaction Documents have been obtainedare true and correct in all material respects (except to the extent (x) such representations and warranties relate solely to an earlier date, in which case such representations and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers warranties shall have been fully disclosed to the Agent true and the Lenders correct as of such earlier date and there shall have been a resolution satisfactory to the Agent of any liens arising from (y) any such supply arrangements.representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the date of the effectiveness of this Agreement;
(rd) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date date of the Plan effectiveness of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation this Agreement on or and after the Consummation Date.
(t) After giving effect to this Agreement, no Potential Event of Default or Event of Default has occurred and is continuing; and
(e) the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the Administrative Agent shall have received payment in full of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including reasonable accrued fees and expenses of counsel to the Existing Letters of CreditAdministrative Agent), in each case which are due and payable under the Transaction Documents on or before the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart effectiveness of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAgreement.
Appears in 1 contract
Sources: Credit Agreement (loanDepot, Inc.)
Conditions Precedent to Closing. The obligation of each Lender to make the initial Revolving Advance and the Term Loan A on the Initial Funding Date This Agreement shall become effective at such time as is subject to satisfaction of the following conditions precedent having been satisfied in a manner precedent:
(1) that the Agent has received (A) payment of the fees due and payable to the Agent under the Agent Fee Letter and (B) payment of closing costs and expenses including attorneys’ fees;
(2) that the Agent has received evidence satisfactory to the Agent (A) that no material litigation has been initiated or is ongoing involving any Loan Party or any of its Subsidiaries or shareholders whether relating to this Agreement or the transactions contemplated hereby or otherwise and (B) that no judgment order injunction or other similar restraint prohibiting any of the transactions contemplated hereby has been issued or is in effect;
(3) that the Agent has received evidence satisfactory to the Agent that the Parent each Borrower and each of their Subsidiaries is in compliance with all applicable laws and regulations and has obtained all licenses consents and approvals necessary to operate its respective business and shall have obtained all material and appropriate approvals pertaining to all applicable governmental ERISA retiree health benefits workers’ compensation and other requirements regulations and laws including without limitation Environmental Laws;
(4) that the Agent has received executed originals of this Agreement and the other Loan Documents and originals or copies (as specified by the Agent) of all of the other documents listed on the Closing Document Checklist attached hereto as Exhibit VI;
(5) [Reserved];
(6) that the Agent has received file-stamped copies of UCC financing statements filed in each jurisdiction as may be necessary or appropriate or in the case opinion of any documents, agreements the Agent desirable to perfect the Liens created or other deliveries, such documents, purported to be created by this Agreement;
(7) that the Agent shall have received evidence satisfactory to it that Parent shall have completed (or concurrently with the initial credit extension hereunder will complete) the Trillium Acquisition pursuant to the terms and conditions of the Trillium Acquisition Agreement which agreement and all schedules ancillary agreements and deliveries documents related thereto or executed in connection therewith (including without limitation a transitional services agreement for billing and collection services) shall be in form and substance satisfactory to Agent in its reasonable discretion;
(8) that the Agent), in each case with Agent has received evidence satisfactory to the consent Agent that the ratio of Senior Funded Debt to EBITDA as of April 30 2012 (calculated on a trailing twelve month basis) of the Majority Lenders Parent and its Subsidiaries on a consolidated basis does not exceed 1.75 to 1.0;
(9) that the Agent has received evidence satisfactory to the extent required in clauses Agent that the EBITDAR (less the EBITDA Addbacks) as of April 30 2012 (calculated on a trailing twelve month basis) of the Parent and its Subsidiaries on a consolidated basis shall not be less than $3 500 000;
(10) that the Agent has received evidence satisfactory to the Agent that (a) through the Net Availability (was set forth in a Borrowing Base Report or as otherwise determined by the Agent) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement is no less than $2 000 000 on the Borrowing Base on the Closing Date and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and the aggregate amount of cash on \39109424 hand in the other Loan Documents shall be true and correct as operating deposit accounts of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as plus the positive difference if any between (i) the Adjusted Borrowing Limit and (ii) the sum of the then Outstanding Balance of the Revolving Loan shall not be less than $2 500 000; and
(11) that the Agent or any Lender shall request, each such opinion to be in a form, scope, has received on-line and substance reasonably satisfactory real-time access to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 operating deposit accounts of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respectsTrillium Seller Account.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. Date This 5.1 Unless waived by Party A in writing, all the obligations of Party A under this Agreement shall become effective at such time as be conditioned upon the fulfillment of the following conditions precedent having by Party A:
(1) This Agreement and its appendixes (if any) shall have been satisfied formally executed by the parties.
(2) The representations and warranties in a manner satisfactory section 6 of this Agreement shall be accurate, true and complete in all material respects.
(3) The financial, tax, business and legal due diligences on the Target Company conducted by Party A shall have been completed and the results of such due diligence are accepted and confirmed by Party A.
(4) The accounting firm designated by Party A shall have completed the review of the Target Company’s financial statements of fiscal year 2010 and the first three quarters of fiscal year 2011 to the Agent satisfaction of Party A.
(5) This Agreement and all the transactions contemplated herein shall have been approved and authorized by the shareholders and/or the board of directors of Party A (if applicable).
(6) The shareholders of the Target Company shall have signed relevant regulations and officially authorized the execution of this Agreement and the performance of transactions contemplated herein; the Existing Shareholders have waived their rights of first refusal in writing.
(7) The board of directors of Target Company and its subsidiaries shall have been elected three (3) members consisting two (2) members appointed by Party A and one (1) member appointed by Party B, and the chairman of the board shall be one of the members appointed by Party A.
(8) The Target Company shall have adopted new articles of association (specifying Party A holds 51% equity of the Company and other relevant information as required by Party A) and registered the equity transfer, modifications of articles of association and update of board of directors with administrative bureau for industry and commerce, and has obtained a new business license and provided the same to Party A.
(9) The remaining 49% of the equity interest of the Target Company of Party B shall have been pledged to Party A. The registration of the aforementioned pledge with administration bureau for industry and commerce administration shall have been completed and the notice of registration of pledge shall have been provided to Party A.
(10) There shall have no any known or rationally expected event or situation which has material adverse effect on the transactions under this Agreement as of the Closing Date. No event or change that has material adverse effect on the assets, business, finance situation and staff of the Target Company has occurred.
(11) The actions of the Transferors that shall have been taken or are to be taken to complete the transactions contemplated under this Agreement, and all the certificates, papers and other documents needed for completion of the same, are to the satisfaction of Party A.
(12) Party A shall have received a PRC legal option regarding the Target Company, Target Equity and the transactions under this Agreement from a PRC lawyer, to the satisfaction of Party A.
(13) All employees of the Target Company and its subsidiaries shall have signed written labor contracts with the Company in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to Party A; the Agentkey employees listed in Appendix I hereto shall have signed labor contracts (the term of which is no less than 2 years) and confidentiality and non-competition agreements with the Target Company, which contracts and agreements shall have been approved or confirmed by Party A.
(14) The Existing Shareholders’ execution of this Agreement and performance the obligations thereof shall have been approved by relevant governmental authorities and third parties (if necessary), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(da) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents there have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement any pending or any other Loan Document delivered in connection herewith potential actions or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being proceedings taken by any competent authority; and no law PRC governmental authorities to limit or regulation shall be applicable in forbid the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any completion of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) there have not been any laws and regulations promulgated by any competent PRC governmental authorities which may cause the decision of such Lender to execute and deliver to the Agent an executed counterpart completion of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderillegal.
Appears in 1 contract
Sources: Equity Transfer Agreement (ChinaNet Online Holdings, Inc.)
Conditions Precedent to Closing. Date This Purchaser’s obligation to consummate the transaction contemplated by this Agreement shall become effective at such time as be subject to satisfaction or waiver of each of the following conditions precedent having been satisfied in a manner satisfactory to (“Conditions Precedent”) on or before 5:00 p.m. Central Daylight Time, on the Agent date which is thirty (and in 30) days after the case date of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in delivery of each case with the consent of the Majority Lenders to the extent required items in clauses Section 3(b) below (a) through (w) hereof or Section 13.2(a)(ii) hereof:“Contingency Date”):
(a) This Agreement Title/Survey. Within twenty (20) days of the date hereof, Seller will furnish to Purchaser: (i) a current title commitment (“Commitment”) for the Real Property (with copies of all underlying title documents listed in the Commitment other than any financing documents) for an ALTA form owner’s title policy (the “Title Insurance Policy”) in the amount of the Purchase Price issued by the Title Company showing title in Seller and (ii) an updated ALTA as-built survey (“Survey”) for the Real Property. If the Survey discloses survey defects or if the Commitment shows exceptions unacceptable to Purchaser (collectively, the “Unpermitted Encumbrances”), then Purchaser shall notify Seller, in writing, within five (5) days after receipt of the Commitment, the underlying title documents and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenantsSurvey, agreements and conditions contained herein and in specifying the other Loan Documents which are required Unpermitted Encumbrances, and, prior to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Contingency Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders Purchaser shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably assurances satisfactory to Purchaser, in its reasonable discretion, that the AgentUnpermitted Encumbrances will be removed or endorsed over on or before Closing. Notwithstanding anything herein to the contrary, the Lenders, and their respective counsel.
(e) The Borrower Seller shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with no obligation to correct, cure or remove any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee LetterUnpermitted Encumbrances.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. Date This Each of Assignor’s and Assignee’s obligations under this Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory is conditioned upon Landlord’s consent to the Agent (Assignment on the terms and in conditions of this Agreement. If such consent is not given by the case date that is 45 days following the date of any documentsthis Agreement, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory either party may cancel this Agreement upon 15 days written notice to the Agent)other; provided, in each case with the however such cancellation shall not be effective if consent of the Majority Lenders is obtained from Landlord prior to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:expiration of such 15-day period.
(a) This Assignor’s obligations under this Agreement are further conditioned upon ▇▇▇▇▇▇▇▇’s execution and delivery of a release of Assignor from all obligations and liabilities arising or accruing under the other Loan Documents have been executed by each party thereto Lease from and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in after the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date..
(b) All representations and warranties made hereunder and Assignee’s obligations under this Agreement are further conditioned upon (i) delivery of the Leased Premises by Assignor on the Closing Date in substantially the other Loan Documents shall be true and correct same condition existing as of the Closing Date as if made on such date (both immediately prior toof this Agreement, reasonable wear and tear excepted, and after giving effect to, such extension broom clean and free of credit).
(c) No Default or Event of Default shall exist Assignor’s personal property not being conveyed to Assignee on the Closing Date, or would exist after giving effect and (ii) removal of Assignor’s identity signage in the interior front hallway of the Leased Premises (and any other signage located in the Leased Premises) and repair of the area(s) to a neat and clean condition at Assignor’s sole cost and expense. Subject to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be terms in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan AgreementSection 3(b), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent , Assignee shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by accept the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfiedLeased Premises in its then “as-is” condition, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently faults and without reliance on the Agent any representation or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderwarranty by Assignor.
Appears in 1 contract
Sources: Landlord Consent to Assignment and Assumption of Lease (XOMA Royalty Corp)
Conditions Precedent to Closing. The obligation of the Lender to make the initial Revolving Advance on the Initial Funding Date This Agreement shall become effective at such time as is subject to satisfaction of the following conditions precedent having been satisfied in a manner precedent:
(1) that the Lender has received (A) payment of the fees due and payable to the Lender on or prior to the Closing Date under Section 2.2, and (B) payment of closing costs and expenses, including attorneys’ fees;
(2) that the Lender has received evidence satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto no material litigation has been initiated or is a true ongoing involving any Borrower or any of its Subsidiaries or shareholders, whether relating to this Agreement or the transactions contemplated hereby or otherwise except as set forth on Schedule II hereto, and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto no judgment, order, injunction, or other similar restraint prohibiting any of the transactions contemplated hereby has been issued or is a true in effect;
(3) that the Lender has received evidence satisfactory to the Lender that each Borrower is in material compliance with all applicable laws and complete copy of a resolution adopted by such Loan Party's Board of Directors regulations, and has obtained all licenses, consents and approvals necessary to operate its respective business and shall have obtained all material and appropriate approvals pertaining to all applicable governmental, ERISA, retiree health benefits, workers’ compensation, and other requirements, regulations, and laws, including without limitation Environmental Laws;
(or in 4) that the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance Lender has received executed originals of this Agreement and the other Loan Documents Documents, and originals or copies (as specified by the Lender) of all of the other documents listed on the Closing Document Checklist attached hereto as Exhibit VI;
(5) the Lender has received file-stamped copies of UCC financing statements fielding each jurisdiction as may be necessary or appropriate or, in the opinion of the Lender, desirable to which it is a party and that such resolution has not been modifiedperfect the Liens created, rescinded or amended and is in full force and effectpurported to be created, by this Agreement; and
(C6) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as Lender has received evidence satisfactory to the incumbency and specimen signature Lender that the sum of each (i) the aggregate amount of such Loan Party's officers executing this Agreement or any other Loan Document delivered cash on hand in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position operating deposit accounts of the Loan Parties as determined that are being monitored by the Agent Lender on-line and in real-time and subject to a Control Agreement, plus (ii) the Majority Lenders in their sole discretion.
positive difference, if any, between (lA) The Lenders shall be fully satisfied with the compliance by Adjusted Borrowing Limit and (B) the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations sum of the business and properties then Outstanding Balance of the Revolving Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding is greater than $6,000,000 after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) giving effect to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.;
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Enzo Biochem Inc)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as 4.1. The obligation of the following conditions precedent having been satisfied in a manner satisfactory Purchasers to acquire the Sale Shares from the Seller and to pay the Purchase Amount for the purchase of the respective Sale Shares is subject to the Agent fulfillment of all the conditions set out below (and in the case of any documentsConditions Precedent), agreements or other deliveries, such documents, agreements and deliveries which shall be in form and substance satisfactory completed, unless waived by the Purchaser Representatives, on or prior to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofLong Stop Date:
(ai) This Agreement The Sale Shares Warranties and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents Tax Warranties shall be true and correct in all respects at and as of the Closing Original Agreement Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be as if made on such date or the Letters at and as of Credit to be issued or the Credit Support to be provided on such date.;
(dii) The Agent Sale Share Warranties specified in paragraphs 1 (a), (b) and (c) of Part B of Schedule 2 shall be true and correct in all respects at and as of the Original Agreement Date, Agreement Date and the Lenders shall have received Closing Date, as if made at and as of such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.date;
(eiii) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal Sale Shares shall have been satisfactory dematerialized and the Seller shall have provided a statement to the Agent in all respects.Purchasers issued by its respective depository participant evidencing the respective Seller’s ownership of such dematerialized shares;
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(iiv) The Agent Seller shall have received a copy of delivered the certificate or articles of incorporation or other constitutive documents, in Preliminary Tax Certificate to each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent Purchaser with respect to each Loan Party certified as the sale of a recent date the Sale Shares held by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).Seller to such Purchaser;
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(rv) There shall have been delivered to no breach of material terms of this Agreement by the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.Seller;
(svi) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which Escrow Agreements shall have been certified by duly executed and the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization Escrow Accounts shall have been met opened and operational;
(or the waiver thereof vii) The OIC Waiver Letter shall have been consented to executed by the Agentrelevant parties;
(viii) At least 2 (Two) Business Days prior to the Purchasers depositing the Net Purchase Amount in the Cash Escrow Account in accordance with Clause 6.1.3 hereof, which consent the Escrow Agent shall not have confirmed in writing that there would be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date no issue in repatriation of the Plan of Reorganization shall have occurred or shall be scheduled Net Purchase Amount to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.Seller’s account outside India;
(tix) After giving effect to the making The conditions precedent as listed in Schedule 6 of any loans under this Agreement (including Other CPs) shall have been completed and / or waived in accordance with the rollover terms therein; and
(x) The Seller shall deliver to the Purchasers the Supporting Documents (except the shareholding pattern of Loans under the DIP Loan Agreement)Company, before and after the payment acquisition of all fees the shares by the Purchasers, showing equity participation of residents and expenses required hereunder non-residents which document shall be jointly procured by the Seller and the issuance of Purchasers from the Company) and all Letters of Credit other information/ documents required to be issued submitted by the Seller (including as advised by the Existing Letters relevant Authorized Dealer) for the due filing of Credit), Form FC-TRS and / or such other exchange control forms prescribed in each case on the date of and immediately subsequent addition to the "Effective Date" or in lieu of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on Form FC – TRS by the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement
Conditions Precedent to Closing. Date This Agreement As a condition precedent to Closing, Company shall become effective at such time as have delivered to Bank the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been Term Note, duly executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.Company;
(b) All representations and warranties made hereunder and in The Collateral Assignment, duly executed by the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).Company;
(c) No Default or Event A fully executed copy of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.Lending Agreement;
(d) The Agent and Collateral Pledge Agreement, duly executed by the Lenders shall have received such opinions of counsel (concerningCompany, among other things, entry of together with the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scopeapplicable Bank Stock, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.Stock Powers (executed in blank);
(e) The Borrower shall have paid all fees Guaranty, duly executed by the Guarantor, together with the applicable Collateral Pledge Agreement, the applicable Bank Stock, and expenses of the Agent and the Attorney Costs incurred Stock Powers (executed in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.blank);
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, Fully executed copies of all insurance coverage as other documents required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of under this Agreement and any of the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered executed in connection herewith or therewithherewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term DebtCollateral Assignment;
(g) and other agreements Certified copies of the Loan Parties Bylaws of the Company and their Subsidiaries Guarantor, and of each resolution of the Company's and Guarantor's respective Boards of Directors duly authorizing the execution and delivery of the applicable loan documents and the Company's and Guarantor's performance hereunder and thereunder;
(h) Certificates of Good Standing, dated not more than thirty (30) days prior to remain outstanding after the date of this Agreement, for the Company from the Kansas Secretary of State, and the Guarantor from the Nebraska Secretary of State, and, if specifically requested by Bank, from the Secretary of State for each other jurisdiction where the nature of Company's or Guarantor's respective businesses requires it to be qualified as a foreign corporation;
(i) An opinion of counsel for Company dated the Closing Date Date, in form and substance satisfactory to Bank, substantially to the effect that (i) Company is a corporation duly organized and existing and in good standing under the laws of the State of Kansas; (ii) Company has adequate corporate power and authority to enter into and perform this Agreement and the Term Note; (iii) that this Agreement, the Term Note, the Collateral Assignment and the Collateral Pledge Agreement have been duly authorized, executed and delivered by Company and are legal, valid and binding instruments enforceable against the Company in accordance with their respective terms, except as may be limited by laws of receivership, insolvency and bankruptcy; (iv) that the Plan complies with all federal and state laws and regulations, including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
the Code and ERISA, and regulations promulgated thereunder; and (ov) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to Plan is qualified under Section 401(a) of the acquisitionCode, ownership and transfer the Trust is exempt from tax under Section 501(a) of Inventory of a Loan Party or otherwise.
(p) The Agent the Code, and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each consummation of its Subsidiaries) to the transactions contemplated by under this Agreement and the Lending Agreement will not constitute a prohibited transaction; and
(j) Any other Loan Documents have been obtaineddocuments, instruments and remain in full force and effect; all applicable waiting periods reports as Bank shall have expired without any action being taken by any competent authority; and no law or regulation reasonably request. Company shall be applicable solely responsible for all costs incurred by it and/or Bank in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon connection with satisfying any of the Loan Documents or any of the transactions contemplated therebyforegoing requirements.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. Date This Section 7.1 Conditions to the Parties' Obligations. The obligations of all the parties to this Agreement to effect the Mergers shall become effective at such time as be subject to the fulfillment of the following conditions precedent having conditions:
7.1.1 This Agreement, the Merger Agreements and the Mergers shall have been satisfied in validly approved by the holders of a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent majority of the Majority Lenders outstanding shares of GLOBAL Common Stock entitled to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:vote;
(a) This Agreement 7.1.2 All permits, approvals and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are consents required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior toobtained, and after giving effect toall waiting periods required to expire, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date consummation of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date Mergers under applicable federal laws of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein United States or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer laws of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to any state having jurisdiction over the transactions contemplated by this Agreement and the other Loan Documents Merger Agreement shall have been obtainedobtained or expired, as the case may be (all such permits, approvals and remain in full force consents and effect; the lapse of all applicable such waiting periods being referred to as the "Requisite Regulatory Approvals"), without the imposition of any condition which in the reasonable judgment of any party to be affected by such condition is materially burdensome upon such party or its respective Affiliates or the Surviving Corporation;
7.1.3 There shall have expired without not be any action being taken taken, or any statute, rule, regulation or order enacted, entered, enforced or deemed applicable to the Mergers, by any competent authorityGovernment Entity which: (i) makes the consummation of any of the mergers illegal; (ii) requires the divestiture by BANCORP of any material asset or of a material portion of the business of BANCORP; or (iii) imposes any condition upon BANCORP or its Subsidiaries (other than general provisions of law applicable to all banks and no law or regulation shall be applicable bank holding companies) which in the judgment of BANCORP would be materially burdensome;
7.1.4 The Registration Statement shall have become effective under the Agent that restrains, prevents or imposes materially adverse conditions upon any Securities Act and no stop order suspending the effectiveness of the Loan Documents Registration Statement shall have been issued and shall remain in effect. No legal, administrative, arbitration, investigatory or other proceeding by any Governmental Entity or any of other Person shall have been instituted and, at what otherwise would have been the Effective Time, remain pending by or before any Governmental Entity to restrain or prohibit the transactions contemplated thereby.hereby;
(q) The terms 7.1.5 BANCORP and GLOBAL shall have received opinions of all sourcing arrangements among counsel for the Loan Parties other party in substantially the forms previously agreed to by the parties as set forth in Exhibits 7.1.5A and their suppliers 7.1.5B, respectively, dated as of the Closing Date;
7.1.6 No action, suit or proceeding shall have been fully disclosed instituted or threatened before any court or governmental body seeking to challenge or restrain the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified transactions contemplated by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (this Agreement or the waiver thereof shall have been consented to by the Agent, Merger Agreements which consent shall not presents a substantial risk that such transactions will be unreasonably withheld restrained or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches that either party hereto may suffer material damages or other evidence reasonably satisfactory to the Agent (in each case dated relief as a result of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all consummating such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.transactions; and
Appears in 1 contract
Sources: Merger Agreement (Humboldt Bancorp)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof Buyer’s obligations under this Agreement are expressly conditioned upon completion or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as satisfaction of the Closing Date as if made following matters on such date (both immediately or prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on to the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.:
(i) The Agent Seller shall have received a copy of the certificate or articles of incorporation or other constitutive documentscomplied, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (includingrespects, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans obligations under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoingforegoing provision, Seller shall have deposited or have caused to be deposited with the capital structure Closing Escrow Agent all documents required of Seller to be deposited into Escrow hereunder;
(ii) the SSB RoFo Certificate and the SSB Estoppel in the form required by Section 6 are delivered to Buyer;
(iii) The representations and warranties of Seller contained in Section 8(a) of this Agreement shall be true and correct in all material respects as of the Loan Parties shall be reasonably satisfactory Closing Date, subject to Section 8(c), (d) and (e) above; and
(iv) The Real Property is in the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the AgentAs Is Condition (as hereinafter defined).
(vb) Seller’s obligations to perform hereunder are expressly contingent and conditional upon the satisfaction of the following:
(i) Buyer shall have complied, in all material respects, with its obligations under this Agreement. Without limiting the generality of the foregoing provision, Buyer shall have deposited or have caused to be deposited with the Closing Escrow Agent all documents and funds required of Buyer to be deposited into Escrow or paid hereunder; and
(ii) The Agent representations and warranties of Buyer contained in Section 8(b) of this Agreement shall have received results of searches or other evidence reasonably satisfactory to the Agent (be true and correct in each case dated all material respects as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(wc) The Agent It shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent be a condition of each party’s obligation to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued close on the Closing Date that (i) a ROFR Termination Event shall have occurred, and (ii) a defeasance of the Mortgage, as contemplated by Section 5, shall have been effected.
(d) The parties acknowledge that the conditions precedent set forth in subsection (a) above are for the benefit of Buyer and that the conditions precedent set forth in subsection (b) above are for the benefit of Seller. Unless otherwise specifically set forth herein, the date by which the conditions precedent must be satisfied shall be deemed to be a representation and warranty made by the Borrower to the effect that all Closing Date. If any of the conditions precedent set forth in subsection (a) or subsection (b) above are not satisfied on or before the date by which they are required to be satisfied, the party for whose benefit the condition precedent exists shall have the right to waive such condition and, to the making extent applicable, the rights under Section 15 of this Agreement. If such Loans or the issuance of such Letters of Credit have been satisfiedwaiver is not given then, with the same effect as delivery subject to the Agent and rights of the Lenders parties under Section 15 hereof in the event a condition was not satisfied by reason of a certificate signed default by a Responsible Officer of the Borrowerparty, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall terminate, the Buyer shall be deemed confirmation by entitled to a return of the Deposit and all interest thereon, and neither party shall have any rights or obligations hereunder, except those that survive any such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart termination of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAgreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (American Financial Realty Trust)
Conditions Precedent to Closing. Date This Agreement shall become effective at SECTION 5.1. CONDITIONS PRECEDENT TO OBLIGATIONS OF EACH INVESTOR. The obligations of each Investor to purchase the Shares hereunder are subject to the satisfaction or the waiver by such time as Investor of the following conditions precedent having been satisfied in a manner satisfactory prior to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case contemporaneously with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofClosing, unless otherwise indicated:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All The representations and warranties made hereunder of the Company contained in this Agreement (except for such representations and in the other Loan Documents warranties as are limited by their terms to an earlier specified date (which shall be true as of such date)) shall be true and correct in all material respects at and as of the Closing Date as if made on such date Date; and the Company shall have complied in all material respects with the agreements set forth in this Agreement required to be performed by it at or prior to the Closing;
(both immediately prior to, and after giving effect to, such extension b) The Chief Executive Officer of credit).the Company shall have delivered to the Investors at the Closing a certificate stating that the conditions specified in paragraph (a) above been fulfilled;
(c) No Default or Event of Default The Company shall exist on the Closing Date, or would exist after giving effect have delivered to the Loans Investors evidence of a key man term life insurance upon the life of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in the amount of $1,000,000, with the proceeds payable exclusively to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.Company;
(d) The Agent and the Lenders Company shall have received such opinions delivered to the Investors the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel (concerningfor the Company, among other things, entry dated the date of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties Closing, substantially in form attached as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.EXHIBIT D hereto;
(e) The Borrower Company and each Investor (other than Reliance Insurance Company) shall have paid all fees and expenses of entered into the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.Registration Rights Agreement;
(f) To The Certificate of Amendment shall have been filed in the extent not previously provided under the DIP Loan Agreementoffice of, and accepted by, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to Secretary of State of the Agent, State of all insurance coverage as required by the Agreement.Delaware;
(g) The Agent Reliance Insurance Company, the Company and the Lenders ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall have had an opportunityterminated Section 9 of that certain Series A Stock Purchase Agreement, if they so choosedated May 15, to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.1996;
(h) All proceedings taken in connection with The Company and Intel shall have entered into a certain Development Agreement of even date herewith (the execution of this "Development Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent."); and
(i) The Agent shall have received a copy offer and sale of the certificate or articles of incorporation or other constitutive documents, in each case amended Shares pursuant to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) exempt from the registration requirements of the Securities Act and the registration and/or qualification requirements of all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderapplicable state securities laws.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as (a) Investor’s obligation to close the transaction hereunder is subject to the satisfaction of the following conditions precedent precedent; provided, however, that Investor, at Investor’s election, upon notice delivered to WWP Sponsor at or prior to the Closing, may waive all or any of such conditions (or shall be deemed to have waived any such condition if it elects to consummate the Closing despite having Actual Knowledge of such conditions not having been satisfied in a manner satisfactory satisfied):
(i) WWP Sponsor shall have executed and delivered to the Agent (and in the case of any documents, agreements Investor or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent Escrowee all of the Majority Lenders documents required to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:be executed and/or delivered by WWP Sponsor under this Agreement.
(aii) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party WWP Sponsor shall have performed and complied with in all material respects, all of WWP Sponsor’s covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Dateobligations under this Agreement.
(biii) All Subject to Section 6.3(b), all of WWP Sponsor’s representations and warranties made hereunder and set forth in the other Loan Documents this Agreement shall be true and correct as of the Closing Date in accordance with Sections 6.3(b) and (c) above; provided, however, notwithstanding anything contained to the contrary in this Agreement, Sponsor’s representation and warranty in Section 6.1(d) can take no exception for those matters set forth on Schedule 6.1(d)(2), which were not rectified in all material respects to Investor’s reasonable satisfaction or any other material matter raised by such tenant that is related to the subject matter of such letter or Nomura; it being agreed that such matters would constitute a Material Adverse Effect and such matters must be cured in all material respects and to the reasonable satisfaction of Investor as if made on such date (both immediately prior to, and after giving effect to, such extension of credit)a condition precedent to Investor’s obligations to closing.
(civ) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders WWP Sponsor shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization obtained and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to Investor the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined Estoppel Certificates in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agentaccordance with Section 7.8 above.
(v) The Agent shall have received results of searches Lender has not objected to or other evidence reasonably satisfactory to has not affirmatively rejected the Agent (in each case dated transactions as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this the Lender Notice; provided, however, that if the Lender affirmatively rejects the transactions under the Lender Notice solely and specifically as a result of Investor’s representations set forth in Section 10.16.6(f) above or in the Investor’s Officer’s Certificate being untrue when made, and (iii) all documents sent to it is ultimately determined by a court of competent jurisdiction that such Lender for approvalrepresentations were untrue when made, consent or satisfaction were acceptable to such Lenderfailure shall constitute a default by Investor as set forth in Section 7.11 above.
Appears in 1 contract
Sources: Contribution and Admission Agreement (American Realty Capital New York Recovery Reit Inc)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof The obligations of DIGITAL and ------------------------------- Sellers under this Agreement shall be and are subject to fulfillment, prior to or Section 13.2(a)(ii) hereofat the Closing, of each of the following conditions:
(ai) This Agreement That AVE's representations and warranties contained herein shall be true and correct at the other Loan Documents have been executed by each party thereto time of Closing, as if such representations and each Loan Party warranties were made at such time;
(ii) That AVE in all material respects shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before it prior to or at the time of the Closing;
(iii) That AVE's directors, by proper and sufficient vote taken either by consent of directors or at a meeting duly and properly called and held, shall have properly approved all of the matters described in Section 7(b)(i) herein; and
(iv) That AVE's common stock will be listed on such Closing Datethe National Quotation Bureau, Inc.'s Bulletin Board.
(b) All The obligations of AVE under this Agreement shall be and are subject to fulfillment, prior to or at the Closing of each of the following conditions:
(i) That AVE's Shareholders and Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; approved the contemplated reverse split of AVE's outstanding Common Stock; approved the resignation of all of AVE's current directors and the election of up to ___ designees of DIGITAL to serve as directors in place of AVE's current directors; approved a change AVE's corporate name to a name selected by DIGITAL and will have approved such other changes as are consistent with this Agreement and approved by DIGITAL for submission to AVE stockholders;
(ii) That DIGITAL's and Sellers' representations and warranties made hereunder and in the other Loan Documents contained herein shall be true and correct as at the time of the Closing Date as if such representations and warranties were made on at such date (both immediately prior to, time and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal that there shall have been satisfactory no Material Adverse Effect with respect to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents DIGITAL; and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent York shall have received a copy Certificate of the certificate or articles DIGITAL and Sellers to such an effect signed by a duly authorized officer of incorporation or other constitutive documents, in each case amended to date, of DIGITAL and by each of the Loan PartiesSellers; and
(iii) That DIGITAL and Sellers shall have performed or complied with all agreements, certified as terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of Closing Date and AVE shall have received a recent date Certificate of DIGITAL and Sellers to such effect signed by the Secretary or duly authorized officer of State or other appropriate official of the state or other jurisdiction of its organization DIGITAL and dated as of a recent date; a certificate of the Secretary of by each of the Loan Parties, dated the Closing Date and certifying Sellers;
(Aiv) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan PartyThat DIGITAL's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall will have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially signed non-compete clauses in the form of attached hereto as Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the J"Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.;
Appears in 1 contract
Sources: Acquisition Agreement (Ave Inc)
Conditions Precedent to Closing. Date This The effectiveness of this Agreement shall become effective at such time as is subject to the satisfaction of the following conditions precedent having been satisfied precedent: Administrative Agent shall have received all of the following, duly executed and delivered and in a manner form, substance and date satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Administrative Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) : This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and documents Lenders are to execute in connection herewith. Each Note. Each Security Document listed in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, Security Schedule. Certain certificates including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate : An “Omnibus Certificate” of the Secretary of each the General Partner, which shall contain an incumbency certificate with the names and signatures of the officers of the General Partner authorized to execute Loan PartiesDocuments on behalf of the General Partner and Restricted Persons and which shall certify to the truth, dated correctness and completeness of the Closing Date and certifying following exhibits attached thereto: (A1) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date resolutions duly adopted by Board of such certificate and at all times since a date prior to the date Managers of the resolution described General Partner, as the general partner of the MLP, and as the sole member of each Restricted Person, in item (B) belowfull force and effect at the time this Agreement is entered into, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance execution of this Agreement and the other Loan Documents delivered or to be delivered in connection herewith and the consummation of the transactions contemplated herein and therein, (2) the Organizational Documents of General Partner and of each Restricted Person and all amendments thereto, certified by the appropriate official of each such Person’s state of organization, and (3) copies of the internal governance documents of General Partner and each Restricted Person. A “Compliance Certificate” of the Chief Financial Officer of the General Partner, in which it is a such officer certifies (i) the transactions contemplated by the Merger Agreement have been consummated in accordance in all material respects with the Merger Agreement and applicable Law, (ii) to the satisfaction of the conditions set out in subsections (a), (b), (c) and (d) of Section 4.2, (iii) as of the Closing Date, no Default or Event of Default will exist after giving effect to the initial Borrowing under this Agreement, (iv) as of the Closing Date, except for the Obligations, no Restricted Person will have any outstanding Indebtedness for borrowed money, (iv) that after giving effect to all Loans and Letters of Credit issued pursuant hereto on the Closing Date, Borrower will have at least $29,000,000 of Unused Borrowing Base, (iv) that all material governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the financing contemplated hereby and that such resolution has not the continuing operations of the Restricted Parties shall have been modified, rescinded or amended obtained and is are in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (Dv) as to compliance with the incumbency financial covenants set forth in Sections 7.12 and specimen signature of each of such Loan Party's officers executing this Agreement 7.13 on a pro forma rolling four quarter basis for the period ending September 30, 2011 (or any other Loan Document delivered in connection herewith or therewithif financial statements are unavailable for that period, as applicable; for the period ending June 30, 2011), using a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The calculation methodology approved by the Administrative Agent. Administrative Agent shall have received certificates a certificate (or certificates) of the due formation, valid existence and good standingstanding of General Partner and each Restricted Person in their respective states of organization, existence or its equivalent with respect to each Loan Party certified as of a recent date issued by the appropriate Governmental Authorities authorities of the state or other jurisdiction such jurisdiction, and certificates of incorporation or organization Borrower’s and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the its Subsidiaries’ good standing and due qualification to do business, operations, assets, properties, liabilities, profits, prospects issued by appropriate officials in any states in which Borrower or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating it Subsidiaries owns property subject to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower Security Documents. Administrative Agent shall have received the proceeds Initial Engineering Report and the Initial Pro Forma Financial Statements and be satisfied with the MLP'’s capital structure. Administrative Agent shall have received originally executed copies of the Term Debt favorable written opinion of GableGotwals, counsel for Restricted Persons, opining as to such matters as Administrative Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance reasonably satisfactory to Administrative Agent (and each Restricted Person hereby instructs such counsel to deliver such opinions to Administrative Agent and Lenders). Administrative Agent shall have received title due diligence in form, substance and authorship satisfactory to Administrative Agent with respect to the Restricted Persons’ oil and gas reserves representing at least eighty percent (80%) of the aggregate Present Value of the Restricted Persons’ Proved Reserves. Certificates evidencing Restricted Persons’ insurance in effect on the Closing Date and showing Administrative Agent as the additional insured and loss payee. Borrower shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the novation agreements, on terms and conditions of satisfactory to Administrative Agent, with respect to the Existing ▇▇▇▇▇▇ for which a Lender or Lender Counterparty is not a counterparty. Borrower shall have paid all material Debt (commitment, facility, agency and other fees required to be paid and then due to Arranger or any Lender pursuant to any Loan Documents or any commitment agreement heretofore entered into, including, without limitation, a facility fee, in the Term Debt) and other agreements amount equal to 0.5% of the Loan Parties initial Borrowing Base and their Subsidiaries payment of all expenses for which invoices have been presented prior to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Date. Administrative Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental Uniform Commercial Code and material third party consents other lien searches reflecting the absence of other liens and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the security interests other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action than those being taken by any competent authority; and no law released or regulation shall be applicable in the judgment of the Agent that restrains, prevents Permitted Liens. No event or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization circumstance shall have occurred or shall be scheduled continuing since December 31, 2010 that has had, or could be reasonably expected to occur but for cause, either individually or in the initial extension of credit under the Post-Confirmation Agreement on aggregate, a Material Adverse Change. All partnership, corporate and other proceedings taken or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including taken in connection with the Existing Letters of Credit), in each case on the date of Merger Agreement and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization all documents incidental thereto shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Administrative Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Administrative Agent shall have received all such counterpart originals or certified copies of such documents as Administrative Agent may reasonably request. and instrumentsThe Closing Date shall occur on or before December 31, 2011. Additional Conditions Precedent. No Lender has any obligation to make any Loan (including Uniform Commercial Code financing statementsits first) and LC Issuer has no obligation to issue any Letter of Credit (including its first), required unless the following conditions precedent have been satisfied: All representations and warranties made by law any Restricted Person in any Loan Document (including, without limitation, the representations in Sections 5.6 regarding no Material Adverse Change and in Section 5.9 regarding Litigation) shall be true on and as of the date of such Loan or reasonably requested the date of issuance of such Letter of Credit (except to the extent that the facts upon which such representations are based have been changed by the Agent extension of credit hereunder) as if such representations and warranties had been made as of the date of such Loan or the date of issuance of such Letter of Credit (except such representations and warranties that expressly refer to be filedan earlier date, registered, published which shall have been true as of such earlier date). No Default or recorded to create Borrowing Base Deficiency shall exist at the date of such Loan or perfect the first priority Liens intended to be created under date of issuance of such Letter of Credit. No Material Adverse Change shall have occurred since the date of this Agreement. Each Restricted Person shall have performed and complied with all agreements and conditions required in the Loan Documents and all such documents and instruments shall have been so filed, registered, published to be performed or recorded complied with by it on or prior to the satisfaction date of such Loan or the Agentdate of issuance of such Letter of Credit. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans Loan or the issuance of such Letters Letter of Credit have been satisfied, with the same effect as delivery shall not be prohibited by any Law and shall not subject any Lender or LC Issuer to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, any penalty or other onerous condition under or pursuant to any such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderLaw.
Appears in 1 contract
Conditions Precedent to Closing. Date This All obligations of Onsite and WBS under this Agreement shall become effective are subject to the fulfillment, prior to or at such time as the Closing Date, of all conditions herein set forth, including, but not limited to, receipt by the appropriate party of all deliveries required by Sections 3.2 and 3.3 herein, and fulfillment, prior to the Closing Date, of each of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This WBS's, Westar Energy's, and Onsite's representations, warranties and covenants contained in this Agreement shall be true at the time of the Closing Date as though such representations, warranties and the other Loan Documents have been executed by each party thereto and each Loan Party covenants were made at such time.
(b) WBS shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before prior to or on such at the Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default Westar Energy shall have performed and complied with all agreements and conditions required by this Agreement to be performed or Event of Default shall exist on complied with prior to or at the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders Onsite shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization performed and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion complied with all agreements and conditions required by this Agreement to be in a form, scope, and substance reasonably satisfactory performed or complied with prior to or at the Agent, the Lenders, and their respective counselClosing Date.
(e) The Borrower Effective as of the Closing Date, WBS's director(s) shall have paid all fees resigned from the board and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated therebyappointed new director(s), including, without limitation pursuant to the Fee Letteras nominated by letter from Onsite's Chief Executive Officer.
(f) To the extent not previously provided under the DIP Loan The Stock Subscription Agreement, the Agent and related agreements, between Onsite and Westar Capital shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreementclosed.
(g) The Agent and Effective as of the Lenders Closing Date, WBS's officer(s) shall have had an opportunity, if they so choose, to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of resigned from such examination and audit and appraisal shall have been satisfactory to the Agent in all respectspositions.
(h) All proceedings taken in connection with the execution of this The Transition Agreement, all other Loan Documents attached hereto as Exhibit E, between Onsite and all documents Western Resources, Inc. shall have been executed and papers relating thereto shall be satisfactory in form, scope, and substance to the Agentdelivered.
(i) The Agent shall have received a copy of Separation Plan attached hereto as Exhibit F (the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A"Separation Plan") that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangementsadopted by Onsite.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Plan and Agreement of Reorganization (Onsite Energy Corp)
Conditions Precedent to Closing. Date This Agreement The obligation of the Lenders to make Advances hereunder comprising the initial Borrowing shall become effective at such time as be subject to the following conditions precedent having been satisfied in a manner satisfactory to that the Facility Agent (and in shall have received on or before the case of any documentsClosing Date the following, agreements or other deliveries, such documents, agreements and deliveries shall be each in form and substance satisfactory to the Facility Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement each of the Facility Documents duly executed and delivered by the other Loan Documents have been executed by parties thereto, which shall each party thereto be in full force and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.effect;
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy copies of such Loan Party's By-laws the Constituent Documents of the Borrower and the Collateral Manager as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item Closing Date;
(Bc) below, (B) that attached thereto is a true and complete copy copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (f) below), if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a resolution adopted by such Loan Party's Board Responsible Officer of Directors the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or in the case other action of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance its board of directors or members or manager approving this Agreement and the other Loan Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such resolution representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has not been modified, rescinded or amended occurred and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovecontinuing, and (Dv) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(e) a certificate of another a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such Loan Party's officers earlier date), (iv) to the best of its knowledge, no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Secretary.Responsible Officers authorized to execute the Facility Documents to which it is a party;
(f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(g) copies of proper financing statements, amendments, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor);
(h) legal opinions (addressed to each of the Secured Parties and DBRS) of (i) Dechert LLP, counsel to the Borrower and the Collateral Manager and (ii) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;
(i) evidence satisfactory to it that all of the Covered Accounts shall have been established; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(j) The Agent evidence satisfactory to it that the Borrower shall have paid (i) the fees to be received certificates by Natixis on or prior to the Closing Date pursuant to this Agreement and each other Facility Document; (ii) the accrued fees and expenses in connection with the transactions contemplated hereby of good standing(A) Ashurst LLP, existence counsel to the Facility Agent and Lenders, (B) Sidley Austin LLP, counsel to DBRS, and (C) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent; and (iii) the fees to be received by DBRS on or its equivalent with respect prior to each Loan Party certified the Closing Date pursuant to the engagement letter dated as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization April 18, 2012 between H.I.G. Whitehorse Holdings, LLC and in each other jurisdiction listed on Schedule 10.1(j)DBRS.
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position a Retention of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt Net Economic Interest Letter substantially in the form of Exhibit E hereto.G;
(nl) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements Delivery of the Loan Parties Collateral (including any promissory note, executed assignment agreements and their Subsidiaries to remain outstanding after the Closing Date copies of any other Related Documents in Microsoft Word format or portable document format (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o.pdf) The Agent shall be reasonably satisfied with the all intercompany arrangements relating available to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(pBorrower for each initial Collateral Obligation) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents in accordance with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers Section 12.20 shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.effected;
(rm) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by of a Responsible Officer of the Borrower, dated as of the Closing Date, to such effect. Execution and delivery the effect that, in the case of each item of Collateral pledged to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:
(i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction Borrower is the owner of such LenderCollateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens;
(ii) the decision of Borrower has acquired its ownership in such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and Collateral in good faith without reliance on the Agent or any other Lender as to the satisfaction notice of any condition precedent set forth adverse claim, except as described in this Section 10.1, and clause (i) above;
(iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral;
(n) the Facility Agent has received a rating letter satisfactory to the Facility Agent, delivered and signed by DBRS and confirming that the Facility has been assigned at least a “AA” rating by DBRS;
(o) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and
(p) all documents sent legal and due diligence matters incident to this Agreement and the other Facility Documents shall be satisfactory to the Borrower, the Facility Agent, the Lenders and their respective counsel;
(q) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Closing Date:
(i) each Collateral Quality Test is satisfied;
(ii) each Coverage Test is satisfied;
(iii) the Advance Rate Test is satisfied;
(iv) no Commitment Shortfall exists; and
(v) with respect to any Collateral Obligation with a Credit Estimate, such Lender Credit Estimate has been assigned by DBRS within one year prior to the Closing Date.
(r) evidence that the Borrower has directed the Collateral Agent to deposit the Closing Expense Account Amount into the Closing Expense Account for approvaluse pursuant to Section 8.12;
(s) a certificate of a Responsible Officer of the Borrower or the Collateral Manager, consent or satisfaction were acceptable dated as of the Closing Date, specifying the Applicable Row Level to such Lenderbe in effect for purposes of the Matrix; and
(t) a certificate of a Responsible Officer of the Collateral Manager, dated as of the Closing Date, certifying that each Collateral Obligation owned by the Borrower as of the Closing Date satisfies the requirements of the definition of “Collateral Obligation”.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (WhiteHorse Finance, LLC)
Conditions Precedent to Closing. Date This Agreement The Commitments of the Lenders shall not become effective at such time as unless and until each of the following conditions precedent having has been satisfied in a manner satisfactory to by the Company:
(a) the Administrative Agent (and in shall have received the case of any documentsfollowing, agreements or other deliveries, such documents, agreements and deliveries shall be each in form and substance satisfactory to the Agent), in Administrative Agent and each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofLenders:
(ai) This Agreement and the other Loan Documents have been executed Promissory notes, if requested by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required any Lender pursuant to be performed or complied with by such Loan Party before or on such Closing DateSection 2.06.
(bii) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as Certified copies of the Closing Date as if made on such date (both immediately prior toresolutions of the Board of Directors of the Company approving this Agreement, and after giving effect toof all documents evidencing other necessary corporate action and governmental approvals, such extension of credit).
(c) No Default or Event of Default shall exist on including the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent NCUC Order and the Lenders shall have received such opinions of counsel (concerningSCPSC Order, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion with respect to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the this Agreement.
(giii) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a A certificate of the Secretary of each or an Assistant Secretary of the Loan PartiesCompany, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy as of such Loan Party's By-laws as in effect on the date of such certificate hereof, certifying the names and at all times since a date prior to the date true signatures of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy officers of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of Company authorized to sign this Agreement and the other Loan Documents documents to which it is be delivered hereunder.
(iv) A certificate of a party Responsible Officer of the Company, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that such resolution no event has not been modified, rescinded or amended occurred and is in full force continuing which constitutes a Default or an Event of Default.
(v) Certified copies of all required governmental approvals and effect, authorizations.
(Cvi) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date Certified copy of the last amendment thereto shown on restated charter and bylaws of the certificate of good standing furnished hereinaboveCompany.
(vii) Evidence satisfactory to the Administrative Agent that (i) the Existing Facility shall have been terminated and all amounts outstanding thereunder shall have been paid in full, and (Dii) the commitments under the $1,130,000,000 Credit Agreement, dated as of May 3, 2006, among Progress Energy, Inc. and the lenders and administrative agent parties thereto shall have been reduced to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretaryno more than $500,000,000.
(jviii) The Favorable opinions of counsel for the Company, substantially in the forms of Exhibit D-1 and Exhibit D-2 hereto and as to such other matters as any Lender through the Administrative Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)may reasonably request.
(kix) There shall be no material adverse change in the businessA favorable opinion of King & Spalding LLP, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent counsel for the Term Debt Administrative Agent, substantially in the form of Exhibit E hereto.
(nx) The Agent Such information as shall be satisfied sufficient for the Administrative Agent and each Lender to verify the identity of the Company for purposes of complying with the terms and conditions USA Patriot Act (Title III of all material Debt Pub. L. 107-56 (includingsigned into law October 26, without limitation2001)), the Term Debtas contemplated by Section 8.17 hereof.
(b) and other agreements of the Loan Parties and their Subsidiaries Any fees required to remain outstanding after be paid on or before the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto)shall have been paid by the Company.
(oc) The Unless waived by the Administrative Agent, the Company shall have paid all reasonable out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent shall be reasonably satisfied in connection with the all intercompany arrangements relating to the acquisition, ownership preparation and transfer negotiation of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain documents to be delivered in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed connection herewith to the Agent extent invoiced prior to or on the Closing Date, plus such additional amounts 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 Company and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Administrative Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoingprovisions of Section 7.04, the capital structure for purposes of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of determining compliance with the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfiedspecified in this Section 3.01, with the same effect as delivery to the Agent and the Lenders of a certificate each Lender that has signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation 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 that (i) all conditions precedent in this Section 10.1 have been fulfilled prior to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement The obligations of NDL and the other Loan Documents have been SELLERS under this Agreement shall be and are subject to fulfillment, prior to or at the Closing, of each of the following conditions: i. That BBN's and MANAGEMENT's representations and warranties contained herein shall be true and correct at the time of Closing as if such representations and warranties were made at such time, and MANAGEMENT will deliver an executed by each party thereto certification confirming the foregoing; ii. That BBN and each Loan Party MANAGEMENT shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before them prior to or on such Closing Date.at the time of the Closing; iii. That BBN's directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly NDL led and held, shall have properly approved all of the matters required to be approved by BBN's directors and shareholders, respectively; iv. That BBN's Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; and
(b) All The obligations of BBN and MANAGEMENT under this Agreement shall be and are subject to fulfillment, prior to or at the Closing of each of the following conditions: i That NDL 's and SELLERS' representations and warranties made hereunder and in the other Loan Documents contained herein shall be true and correct as at the time of the Closing Date as if such representations and warranties were made on at such date (both immediately prior to, time and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent NDL and the Lenders NDL PRINCIPALS shall deliver an executed certification confirming the foregoing; ii. That NDL and NDL PRINCIPALS shall have received such opinions of counsel (concerningperformed or complied with all agreements, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated required by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including performed or complied with by them prior to or at the Existing Letters time of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.Closing
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement Subject to Section 3.02, the obligation of the Lenders hereunder shall become effective at such time as be subject to the following conditions precedent having been satisfied in a manner satisfactory to that the Facility Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed received on or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall requestfollowing, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Facility Agent:
(a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisalFund, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws Collateral Manager as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item Closing Date;
(Bc) below, (B) that attached thereto is a true and complete copy copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a resolution adopted by such Loan Party's Board Responsible Officer of Directors the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or in the case other action of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance its board of directors or members approving this Agreement and the other Loan Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the 109 Facility Documents to which it is a party are true and correct in all material respects as of the 110 Closing Date (except to the extent such resolution representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has not been modified, rescinded or amended occurred and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovecontinuing, and (Dv) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(e) a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that Collateral Manager certifying
(i) all conditions precedent in this Section 10.1 have been fulfilled as to the satisfaction of such Lenderits Constituent Documents, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to its resolutions approving the satisfaction of any condition precedent Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in this Section 10.1the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iiiiv) all documents sent to such Lender for approvalno Default or Event of Default has occurred and is continuing, consent or satisfaction were acceptable to such Lender.and
Appears in 1 contract
Sources: Credit and Security Agreement (TCW Direct Lending VIII LLC)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as (a) M▇▇▇-▇▇▇▇’▇ obligation to Close hereunder is subject to satisfaction of the following conditions precedent having been satisfied precedent, any of which may be waived in a manner satisfactory to the Agent (and whole or in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent)part by M▇▇▇-▇▇▇▇, in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofits sole and absolute discretion:
(ai) This Agreement The G▇▇▇ SLG Transferors shall have delivered to or for the benefit of M▇▇▇-▇▇▇▇, on or before the Closing Date, all of the documents and items required of the G▇▇▇ SLG Transferors pursuant to Section 12(a), and the other Loan Documents have been executed by each party thereto and each Loan Party G▇▇▇ SLG Transferors shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required of their obligations hereunder to be performed or complied with by such Loan Party before or on such as of the Closing Date.Date in all material respects;
(bii) The Title Company shall have irrevocably committed to issue an owner’s title insurance policy with respect to each Property, subject only to the Permitted Exceptions;
(iii) All of the G▇▇▇ SLG Transferors’ representations and warranties made hereunder and in the other Loan Documents this Agreement shall be true and correct in all material respects (except to the extent otherwise qualified by a materiality standard) as of the date hereof and as of the Closing Date as if made on such date then made, subject to any changes or updates as are contemplated or permitted hereunder and set forth in the Certification of Representations and Warranties, provided, that the Entity Related Representations shall be deemed true and correct for purposes of this Section 11(a) unless the aggregate liability arising from incorrect Entity-Related Representations is in excess of $20,000,000;
(both immediately prior toiv) The Portfolio TRS Reorganization shall have taken place;
(v) Challenger Parent shall have contributed 100% of the stock of Challenger TRS to Challenger Owner;
(vi) M▇▇▇-▇▇▇▇ shall have received Tenant Estoppels meeting the Minimum Estoppel Condition, subject to Section 9(j);
(vii) The Existing Mezzanine Debt shall be satisfied in full at Closing in accordance with Section 12(e), and after giving effect to, such extension the M▇▇▇-▇▇▇▇ Interest shall be free and clear of creditany Encumbrances;
(viii) The Debt Assumption shall occur (provided that M▇▇▇-▇▇▇▇ is not in default of its obligations hereunder with respect thereto); and
(ix) The Existing Floating Rate Debt shall be satisfied in full with respect to the Class A Properties and Class B Properties. The New Financing shall close simultaneously herewith.
(cb) No Default The G▇▇▇ SLG Transferors’ obligation to Close hereunder is subject to satisfaction of the following conditions precedent, any of which may be waived in whole or Event in part by the G▇▇▇ SLG Transferors, in their sole and absolute discretion:
(i) M▇▇▇-▇▇▇▇ shall have paid the Total Purchase Price pursuant to the terms hereof;
(ii) M▇▇▇-▇▇▇▇ shall have delivered to or for the benefit of Default shall exist G▇▇▇ SLG, on or before the Closing Date, all of the documents and items required to be delivered by M▇▇▇-▇▇▇▇ pursuant to Section 12(b), and M▇▇▇-▇▇▇▇ shall have performed all of its obligations hereunder to be performed on or would exist after giving effect before the Closing Date;
(iii) All of M▇▇▇-▇▇▇▇’▇ representations and warranties made in this Agreement shall be true and correct in all material respects (except to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(dextent otherwise qualified by a materiality standard) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry as of the order confirming the Plan of Reorganization date hereof and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.if then made;
(jiv) The Agent Debt Assumption and Guarantor Release shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effectoccur; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent New Financing shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Dateclose simultaneously herewith.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Contribution and Sale Agreement (Mack Cali Realty Corp)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof The obligations of WWI and the SELLERS under this Agreement shall be and are subject to fulfillment, prior to or Section 13.2(a)(ii) hereofat the Closing, of each of the following conditions:
(ai) This Agreement That GOLDEN's and MANAGEMENT's representations and warranties contained herein shall be true and correct at the other Loan Documents have been time of Closing as if such representations and warranties were made at such time, and MANAGEMENT will deliver an executed by each party thereto certification confirming the foregoing;
(ii) That GOLDEN and each Loan Party MANAGEMENT shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by them prior to or at the time of the Closing;
(iii) That GOLDEN's directors, by proper and sufficient vote taken either by consent of directors or at a meeting duly and properly called and held, shall have properly approved the sale of GOLDEN's assets to and the assumption of GOLDEN's liabilities by Twin Dragon Trading Corporation ("Twin Dragon"), and that WWI shall have received satisfactory evidence of the consummation of the sale of GOLDEN's assets to Twin Dragon and the assumption of GOLDEN's liabilities by Twin Dragon, together with a satisfactory indemnification from Twin Dragon and its principal owners as to any previous liabilities of GOLDEN;
(iv) That WWI shall have received a legal opinion from counsel to GOLDEN that the actions approved by the Board of Directors as set forth in Section 7(a)(iii) and Section 7(a)(vii) herein can be effected without approval of GOLDEN'S shareholders and that, upon such Loan Party before Board approval, the transactions referred to those Sections will have been consummated and will represent GOLDEN's binding obligations;
(v) That GOLDEN shall have filed the notice required by Rule 14(f)(1) under the '34 Act and the notice of the reverse split required by Rule 10b-17 under that Act, and shall have sent notice to its stockholders of the transactions contemplated herein; and
(vi) GOLDEN shall have filed the Form S-8 contemplated by Section 12 herein and shall have provided WWI and the CONSULTANTS (as defined in Section 12 herein) with a legal opinion that the shares issued to CONSULTANTS can be and by virtue of the filing of Form S-8 have been registered under the '33 Act pursuant to FORM S-8; and
(vii) That GOLDEN'S Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; approved the contemplated reverse split of GOLDEN's outstanding Common Stock without changing either the authorized shares or on the par value; approved the resignation of all of GOLDEN'S current directors and the election of up to six designees of WWI to serve as directors in place of GOLDEN's current directors; approved the sale of assets to Twin Dragon as described in Section 7(a)(iii} herein; and will have approved such Closing Dateother changes as are consistent with this Agreement and approved by WWI and GOLDEN; and
(viii) That SELLERS shall have received confirmation of full payment from all parties required to receive payment for the costs in connection with this transaction, as referred to in Section 4(1)herein.
(b) All The obligations of GOLDEN and MANAGEMENT under this Agreement shall be and are subject to fulfillment, prior to or at the Closing of each of the following conditions:
(i) That WWI's and SELLERS' representations and warranties made hereunder and in the other Loan Documents contained herein shall be true and correct as at the time of the Closing Date as if such representations and warranties were made on at such date (both immediately prior to, time and after giving effect to, such extension of credit).WWI and the WWI PRINCIPALS shall deliver an executed certification confirming the foregoing;
(cii) No Default That WWI and WWI PRINCIPALS shall have performed or Event of Default shall exist on the Closing Datecomplied with all agreements, or would exist after giving effect to the Loans terms and conditions required by this Agreement to be made on such date performed or complied with by them prior to or at the Letters the of Credit to be issued or the Credit Support to be provided on such date.Closing; and
(diii) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan PartyThat WWI's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall will have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially signed non-compete clauses in the form of attached hereto as Exhibit E hereto"J".
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as on the date on which each of the following conditions precedent having been satisfied shall be satisfied:
(a) The Administrative Agent shall have received the following, each dated as of the Closing Date (unless otherwise specified) and in a manner such number of copies as the Administrative Agent shall have requested:
(i) Executed counterparts of this Agreement from each party hereto either signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to this Agreement) that such party has signed a counterpart of this Agreement;
(ii) To the extent requested by any Lender in accordance with SECTION 2.4(d), a Note for such Lender duly completed in accordance with the provisions of SECTION 2.4(d) and executed by the Borrower;
(iii) A certificate, signed by the chief executive officer or the chief financial officer of the Borrower, in form reasonably satisfactory to the case Administrative Agent, certifying on behalf of any documentsthe Borrower that (A) all representations and warranties of the Borrower contained in this Agreement and the other Credit Documents are true and correct in all material respects as of the Closing Date, agreements both immediately before and after giving effect to the consummation of the transactions contemplated hereby, (B) no Default or other deliveriesEvent of Default has occurred and is continuing, such documentsand (C) both immediately before and after giving effect to the consummation of the transactions contemplated by this Agreement, agreements no Material Adverse Effect has occurred since December 31, 2003 and deliveries shall there exists no event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect;
(iv) A certificate of the secretary or an assistant secretary of the Borrower, in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Administrative Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws the certificate of incorporation and all amendments thereto of the Borrower, certified as in effect on of a recent date by the Secretary of State of Delaware and that the same has not been amended since the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) belowcertification, (B) that attached thereto is a true and complete copy of the bylaws of the Borrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a resolution true and complete copy of resolutions adopted by such Loan Party's Board the board of Directors (or in directors of the case of a Loan Party that is not a corporation, the equivalent governing body) Borrower authorizing the execution, delivery and performance of this Agreement and the other Loan Credit Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinaboveparty, and (D) as to the incumbency and specimen genuineness of the signature of each officer of such Loan Party's officers the Borrower executing this Agreement or any of the other Loan Document delivered in connection herewith or therewithCredit Documents, as applicableand attaching all such copies of the documents described above; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.and
(jv) the favorable opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP counsel to the Borrower addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(b) The Administrative Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified a certificate as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction good standing of incorporation or organization each of (i) the Borrower, and (ii) the Material Subsidiaries, in each other jurisdiction listed on Schedule 10.1(j).case under the laws of their respective jurisdictions of organization, from the Secretary of State or Insurance Regulatory Authority (or comparable Governmental Authority) of such jurisdiction;
(kc) There shall be no material adverse change in the businessAll legal, operationstax, assetsaccounting, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent business and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations other matters relating to the conduct Borrower and operations of its Subsidiaries, documentation and corporate or other proceedings incident to the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent transactions contemplated hereby shall be satisfied with reasonably acceptable to the terms Administrative Agent; all approvals, permits and conditions consents of all material Debt any Governmental Authority (including, without limitation, the Term Debtall relevant Insurance Regulatory Authorities) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable theretoPersons required in connection with the execution and delivery of this Agreement shall have been obtained (without the imposition of conditions that are not reasonably acceptable to the Administrative Agent).
(o) The Agent , and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effecteffect and the Administrative Agent shall have received such copies thereof as it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by any competent authorityGovernmental Authority having jurisdiction; and no law action, proceeding, investigation, regulation or regulation legislation shall be applicable have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in the judgment of the Agent each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that restrainsis otherwise related to or arises out of, prevents or imposes materially adverse conditions upon this Agreement, any of the Loan other Credit Documents or any the consummation of the transactions contemplated hereby or thereby., or that, in the opinion of the Administrative Agent, could reasonably be expected to have a Material Adverse Effect;
(qd) Since December 31, 2003, there shall not have occurred any Material Adverse Effect or any event, condition or state of facts that could reasonably be expected to have a Material Adverse Effect;
(e) The terms of all sourcing arrangements among the Loan Parties and their suppliers Borrower shall have been fully disclosed paid to the Arranger, the Administrative Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including fees and expenses of counsel) in connection with this Agreement and the issuance of all Letters of Credit to be issued transactions contemplated hereby;
(including f) The Administrative Agent shall have received a Covenant Compliance Worksheet, duly completed and certified by the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" chief financial officer or treasurer of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization Borrower and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent Administrative Agent, demonstrating Borrower's compliance with the financial covenants set forth in all respects and ARTICLE VI determined as of March 31, 2004 other than the terms of any Debt computation of the Loan Parties financial covenant set forth in SECTION 6.3 which shall be satisfactory as of the last day of the month most recently ended prior to the Agent.Closing Date;
(vg) The Administrative Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereofit that, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent principal, interest and other amounts outstanding under the Prior Senior Credit Facility, if any, shall be repaid and satisfied in this Section 10.1 have been fulfilled to the satisfaction of such Lender, full and (ii) all commitments to extend credit under the decision of such Lender to execute agreements and deliver instruments relating to the Prior Senior Credit Facility shall have been terminated; and
(h) The Administrative Agent an executed counterpart of this Agreement was made by and each Lender shall have received such Lender independently other documents, certificates, opinions and without reliance on instruments in connection with the Agent or any other Lender transactions contemplated hereby as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderit shall have reasonably requested.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement The obligation of the Lenders to make Advances hereunder comprising the initial Borrowing shall become effective at such time as be subject to the following conditions precedent having been satisfied in a manner satisfactory to that the Facility Agent (and in shall have received on or before the case of any documentsClosing Date the following, agreements or other deliveries, such documents, agreements and deliveries shall be each in form and substance satisfactory to the Facility Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement each of the Facility Documents duly executed and delivered by the other Loan Documents have been executed by parties thereto, which shall each party thereto be in full force and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.effect;
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy copies of such Loan Party's By-laws the Constituent Documents of the Borrower and the Investment Manager as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item Closing Date;
(Bc) below, (B) that attached thereto is a true and complete copy copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (e) below), if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a resolution adopted by such Loan Party's Board Responsible Officer of Directors the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or in the case other action of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance its board of directors or members approving this Agreement and the other Loan Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such resolution representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has not been modified, rescinded or amended occurred and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovecontinuing, and (Dv) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(e) a certificate of another a Responsible Officer of the Investment Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such Loan Party's officers earlier date), (iv) to the best of its knowledge, no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Secretary.Responsible Officers authorized to execute the Facility Documents to which it is a party;
(f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement;
(g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor);
(h) legal opinions (addressed to each of the Secured Parties and DBRS) of (i) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower and the Investment Manager and (ii) ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;
(i) evidence satisfactory to it that all of the Covered Accounts shall have been established; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian and shall be in full force and effect;
(j) The Agent shall have received certificates a Retention of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt Net Economic Interest Letter substantially in the form of Exhibit E hereto.G;
(nk) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements Delivery of the Loan Parties Collateral (including any promissory note, executed assignment agreements and their Subsidiaries to remain outstanding after the Closing Date copies of any other Related Documents in Microsoft Word format or portable document format (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o.pdf) The Agent shall be reasonably satisfied with the all intercompany arrangements relating available to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(pBorrower for each initial Collateral Obligation) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents in accordance with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers Section 12.20 shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.effected;
(rl) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by of a Responsible Officer of the Borrower, dated as of the Closing Date, to such effect. Execution and delivery the effect that, in the case of each item of Collateral pledged to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:
(i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction Borrower is the owner of such LenderCollateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens;
(ii) the decision of Borrower has acquired its ownership in such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and Collateral in good faith without reliance on the Agent or any other Lender as to the satisfaction notice of any condition precedent set forth adverse claim, except as described in this Section 10.1, and clause (i) above;
(iii) all the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;
(iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and
(v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral;
(m) the Facility Agent has received a rating letter satisfactory to the Facility Agent, delivered and signed by DBRS and confirming that the Facility has been assigned at least a “AA” rating by DBRS;
(n) evidence that the Aggregate Principal Balance of the Collateral Obligations contributed by TPG Specialty Lending Inc. to the Borrower (calculated as of the Closing Date) equals or exceeds $62.5 million;
(o) such other opinions, instruments, certificates and documents sent from the Borrower as the Agents or any Lender shall have reasonably requested; and
(p) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Closing Date:
(i) the Borrower is the owner of 7 or more Collateral Obligations from 5 or more different Obligors from 3 or more industries identified on Schedule 5;
(ii) such Lender for approvalCollateral Obligations have (i) a Weighted Average Spread greater than or equal to 4.50% and (ii) a Weighted Average DBRS Risk Score less than or equal to 49.7747;
(iii) each of the Minimum Weighted Average Recovery Rate Test, consent the Weighted Average Maturity Date Test, and the Minimum Weighted Average Fixed Rate Coupon Test shall be satisfied;
(iv) the Aggregate Principal Balance of the Collateral Obligations consisting of Eligible Senior Secured Loans equals or satisfaction were acceptable exceeds $56.25 million; and
(v) with respect to any Collateral Obligation with a Credit Estimate, such LenderCredit Estimate has been assigned by DBRS within one year prior to the Closing Date.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (TPG Specialty Lending, Inc.)
Conditions Precedent to Closing. Date This Agreement The obligations of the Banks to make Advances hereunder shall not become effective at such time as until the date on which each of the following conditions precedent having been is satisfied (or waived in accordance with Section 8.01):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a manner counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Banks and dated the Closing Date) of (i) Jose▇▇ ▇. ▇▇▇▇▇▇, ▇▇., ▇▇unsel for the Borrower, substantially in the form of Exhibit C-1 and (ii) Morg▇▇ ▇▇▇▇▇ & ▇ockius LLP, New York counsel for the Borrower, substantially in the form of Exhibit C-2, in each case covering such other matters relating to the Borrower, the Loan Papers or the Transactions as the Majority Banks shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, the authorization of the Transactions and any documentsother legal matters relating to the Borrower, agreements the Loan Papers or other deliveriesthe Transactions, such documents, agreements and deliveries shall be all in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement Administrative Agent and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such dateits counsel.
(d) The Administrative Agent and the Lenders shall have received such opinions of counsel (concerninga certificate, among other thingsdated the Closing Date and signed by the President, entry a Vice President or a Financial Officer of the order Borrower, confirming compliance with the Plan conditions set forth in paragraphs (a) and (b) of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselSection 3.02.
(e) The Borrower Administrative Agent shall have paid received all fees and expenses of other amounts due and payable on or prior to the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated therebyClosing Date, including, without limitation pursuant to the Fee Letterextent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f) To All consents and approvals required to be obtained from any governmental authority or other Person in connection with the Transactions shall have been obtained, except to the extent that failure to obtain any such consent or approval, individually or in the aggregate, could not previously provided under reasonably be expected to have a material adverse effect on the DIP Loan Agreementbusiness, assets, operations, financial condition or prospects of the Agent shall have received evidenceBorrower and its Subsidiaries, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage taken as required by the Agreementa whole.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal Previous Credit Agreements shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents terminated and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent amounts outstanding thereunder shall have received a copy of the certificate been or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors shall simultaneously be repaid (or in the case of a Loan Party that is not a corporationbanker's acceptances listed on Schedule V hereto, shall be deemed to have been issued under the equivalent governing bodyCredit Agreement described in clause (b) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown definition of "Other Credit Agreements"), except that the Credit Agreement referred to in clause (d)(i) of the definition of Previous Credit Agreements shall be terminated and all amounts outstanding thereunder shall be repaid on the certificate of good standing furnished hereinaboveor prior to December 1, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary1998.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(kh) There shall not be no material adverse change any litigation, administrative proceedings or other legal or regulatory actions pending or threatened which individually or in the business, operations, assets, properties, liabilities, profits, prospects aggregate (i) prevent or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes impose materially adverse conditions upon any of the Loan Documents Transactions or (ii) could reasonably be expected to have a material adverse effect on the business, assets, operations, financial condition or prospects of the Borrower and its Subsidiaries, taken as a whole.
(i) The consummation of the Transactions shall not (i) violate any applicable law, statute, rule or regulation or (ii) conflict with, or result in a default under, or any right to terminate or renegotiate, any material Debt or contract of the Borrower or any of the transactions contemplated therebyits Subsidiaries.
(qj) The terms of all sourcing arrangements among the Loan Parties and their suppliers Other Credit Agreements shall have been fully disclosed to become or shall simultaneously become effective. The Administrative Agent shall notify the Agent Borrower and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk Banks of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expiredClosing Date, and no appeals (unless consented to by Agent) from the confirmation order such notice shall be outstandingconclusive and binding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of Notwithstanding the foregoing, the capital structure obligations of the Loan Parties Banks to make Advances hereunder shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt not become effective unless each of the Loan Parties foregoing conditions is satisfied (or waived pursuant to Section 8.01) at or prior to 3:00 p.m., New York City time, on November 4, 1998 (and, in the event such conditions are not so satisfied or waived, the Commitments shall be satisfactory to the Agentterminate at such time).
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: 364 Day Competitive Advance/Revolving Credit Agreement (Union Pacific Resources Group Inc)
Conditions Precedent to Closing. Date This Agreement As a condition to Bank's obligation to close and fund the Bank Loan and to proceed with the transactions contemplated herein, Borrowers, at their sole expense, shall become effective have satisfied, fulfilled or provided, to Bank's sole satisfaction, at such time as or before the following date hereof all of the conditions precedent having and items set forth below unless the satisfaction, fulfillment or provision thereof shall have been satisfied in a manner satisfactory waived by Bank:
(a) No portion of any Property shall have been damaged by fire or other casualty and not repaired to the Agent condition immediately prior to such casualty, and no condemnation or taking of the Property or any portion thereof shall be pending or threatened;
(b) Bank shall have received all duly executed, and in acknowledged if necessary, Bank Loan Documents, Borrower Documents and Collateral Documents, including originals of all of the case Collateral Notes and all amendments and modification thereto, and all other documents to be delivered and/or executed by third parties shall have been delivered and/or executed, and all of any documents, agreements or other deliveries, such documents, agreements and deliveries the same shall be in form and substance satisfactory acceptable to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).Bank;
(c) No Default or Event The security interests in all personal property described in the Collateral Documents shall have been, subject to recording of Default any financing statements, duly perfected and shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on constitute valid and enforceable first priority liens and security interests in such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.property;
(d) The Agent and A Loan Fee in the Lenders amount of $14,,000 shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion paid to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.Bank;
(e) The Borrower No Event of Default or Conditional Default shall have paid all fees occurred and expenses of the Agent and the Attorney Costs incurred in connection with be continuing under this Agreement or any of the other Bank Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.Documents;
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent No default shall have received evidence, in form, scope, occurred and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon continuing under any of the Senior Loan Documents or any of the transactions contemplated thereby.Tenant Leases;
(qg) Bank shall have received the most recent financial statements of Borrower as required by Section 7.1;
(h) Bank shall have received a written opinion or opinions of counsel to Borrower addressed to Bank in form and scope satisfactory to Bank and its counsel;
(i) Bank shall have received or be reimbursed for all of Bank's reasonable out-of-pocket expenses incurred in connection with the Bank Loan, including, but not limited to (i) the reasonable fees and expenses of Bank's legal counsel, and (ii) all credit, title, lien and other search and due diligence and investigation fees, premiums and expenses;
(j) All of the representations and warranties of Borrower as set forth in Article VIII hereof shall be true, correct and accurate in all material respects;
(k) Bank shall have received, reviewed and approved the Collateral Loan Documents;
(l) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There Title Policies shall have been delivered to Bank on terms satisfactory to the Agent Bank, together with written assurances from the title insurer satisfactory to the Bank that the benefits of the Title Policies shall extend to Bank and its successors and assigns as assignees of the Mortgages;
(m) Bank shall have received and reviewed and be satisfied with all Transaction Documents
(n) Each Borrower and each of the Collateral Borrowers shall have executed and delivered to Bank letters addressed to each of the Senior Lenders and/or the Tenants, as the case may be, directing payment to Bank of all sums to be paid by the Tenants under the Tenant Leases, subject to the rights of the Senior Lenders; and
(o) Bank shall have received and reviewed and be satisfied with such additional instruments other materials and documents as the Agent or its counsel Bank may reasonably may require or requestrequire.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Loan Agreement (DVL Inc /De/)
Conditions Precedent to Closing. a. The performance by the Seller of each of its agreements and obligations under this Agreement, including without limitation the obligation to complete the Closing, is conditioned upon the satisfaction (or the Seller’s written waiver) on or prior to the Closing Date This Agreement shall become effective at such time as of all of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(ai) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All The representations and warranties made hereunder and in of the other Loan Documents Buyer herein contained shall be true and correct as of in all material respects on the Effective Date and on the Closing Date as if though made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(dii) The Agent and the Lenders Buyer shall have received such opinions of counsel (concerningperformed, among other things, entry of the order confirming the Plan of Reorganization observed and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion complied with all agreements and obligations required by this Agreement to be in a formperformed, scope, observed and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselcomplied with on its part hereunder.
(eiii) The Borrower Buyer shall have paid all fees executed and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant delivered to the Fee LetterSeller an Assignment and Assumption of Membership Interests Agreement in the form attached hereto as Exhibit “A,” transferring the Offered Interests to the Buyer.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required b. The performance by the Agreement.
(g) The Agent Buyer of each of his agreements 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of obligations under this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in formincluding without limitation the obligation to complete the Closing, scope, and substance is conditioned upon the satisfaction (or the Buyer’s written waiver) on or prior to the Agent.Closing Date of all of the following conditions:
(i) The Agent shall have received a copy representations and warranties of the certificate or articles of incorporation or other constitutive documents, Seller herein contained shall be true and correct in each case amended to date, of each of all material respects on the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Effective Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty as though made by the Borrower to the effect that all of the conditions precedent to the making of on such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, date.
(ii) the decision of such Lender to execute The Seller shall have performed, observed and deliver to the Agent an executed counterpart of complied with all agreements and obligations required by this Agreement was made by such Lender independently to be performed, observed and without reliance complied with on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and its part hereunder.
(iii) all documents sent The Seller shall have executed and delivered to such Lender for approval, consent or satisfaction were acceptable the Buyer an Assignment and Assumption of Membership Interests Agreement in the form attached hereto as Exhibit “A,” transferring the Offered Interests to such Lenderthe Buyer.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (GMH Communities Trust)
Conditions Precedent to Closing. Date This 4.1 Conditions to Obligations of the Purchaser. The obligations of the ------------------------------------------ Purchaser under this Agreement shall become effective are, at such time as the option of the Purchaser (in its sole and absolute discretion), subject to the following conditions precedent:
4.1.1 All consents required in order for the transfer to OCPS of good title to the Assets of shall have been obtained and such transfers shall be in accordance with all applicable laws and regulations (including applicable regulatory approvals);
4.1.2 All of the conditions precedent having to the closing of the sale of the assets and shares set forth in the CPS Purchase Agreement shall have been satisfied in a manner satisfied;
4.1.3 The results of the audit of HELP's financial statements for the fiscal years ended December 31, 1998 and December 31, 1999 and the five-month period ended May 31, 2000 by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are satisfactory to the Agent (Purchaser, in the Purchaser's reasonable satisfaction;
4.1.4 Between December 31, 1999 and the Closing Date, there shall have been no material adverse change in the condition, prospects or title of HELP, the Business, the Assets, taken as a whole, except changes in the ordinary course of business, none of which has been materially adverse;
4.1.5 The Purchaser's investigations and review, if any, pursuant to Article 3 hereof shall not have revealed any information which materially and adversely reflects upon any HELP, the Business, the Premises or the Shareholders;
4.1.6 All parties to this Agreement other than the Purchaser shall have taken all requisite action for the valid performance of this Agreement, including the transfer of the Assets to OCPS, lien-free and in the case condition otherwise required herein;
4.1.7 The Purchaser shall have received an executed form of any documentsRelease of Financing Statement on Form UCC-2, agreements or such other form of release reasonably acceptable to the Purchaser, for each lien or other deliveriesencumbrance shown on Schedule 2.1.1C hereto, and such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent)form(s) of release shall, in each case with the consent reasonable --------------- opinion of the Majority Lenders to Purchaser, effect a complete release thereof (collectively, the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:"Executed Releases");
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) 4.1.8 All representations and warranties made hereunder and in of parties to this Agreement other than the other Loan Documents Purchaser shall be true and correct in all material respects as of the Closing Date as if made on such date (both immediately prior to;
4.1.9 No covenant of a party to this Agreement other than the Purchaser shall be in default nor shall a default be threatened with solely the passing of time, and after the giving effect toof notice, such extension of credit).or both;
(c) 4.1.10 No Default or Event of Default impediments shall exist on the Closing Date, or would exist after giving effect be threatened with respect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance by the parties to each of this the Investors' Rights Agreement and the Non-Competition Agreement other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since than the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.Purchaser;
(j) The Agent 4.1.11 HELP shall have received certificates of good standingcompleted and executed all documents necessary to change its name to a name which is sufficiently dissimilar to its current name, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There which determination shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their Purchaser's sole discretion.; and
(l) 4.1.12 The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower Purchaser shall have received the proceeds legal opinion of counsel HELP and the Shareholders dated as of the Term Debt Closing Date and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form attached hereto as Exhibit "E" ("Opinion of Exhibit E hereto.
(n) The Agent shall Counsel to HELP and the ----------- Shareholders"), which opinion may be satisfied with relied upon by the terms Purchaser and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements Purchaser's counsel in the rendering of the Loan Parties and their Subsidiaries to remain outstanding after opinion of the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating Purchaser's counsel to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and parties providing financing to the Lenders shall have received evidence reasonably satisfactory Purchaser to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to consummate the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated therebyAgreement.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Purchase Agreement (Cypress Financial Services Inc)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as The closing of this transaction (“Closing”) is subject to the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent favour of the Majority Lenders to Purchaser, which conditions may be waived by the extent required Purchaser in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofits sole discretion:
(a) This Agreement and The Board of Directors of the other Loan Documents have been executed Purchaser approving the purchase of the Business by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.Purchaser from the Vendor;
(b) All representations and warranties made hereunder and in the other Loan Documents The Vendor shall be true and correct as have delivered a copy of a resolution of the Closing Date as if made on such date (both immediately prior to, shareholders and after giving effect to, such extension Board of credit).Directors of the Vendor approving the purchase of the Business by the Purchaser from the Vendor;
(c) No Default or Event The Vendor shall have entered into an agreement with the Purchaser to assign the Website Template License Agreement, whereby all rights of Default the Vendor shall exist on the Closing Datebe sold, or would exist after giving effect assigned and transferred to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.Purchaser;
(d) The Agent and the Lenders Contractors shall have received such opinions of counsel (concerning, among other things, entry of entered into the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties agreement attached hereto as the Agent or any Lender shall request, each such opinion Schedule B with regard to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.additional website templates;
(e) The Borrower Igor shall have paid all fees and expenses entered into an agreement with the Purchaser to act as an independent contractor, for total consideration of $1.00, during the Agent and 90 day period following the Attorney Costs incurred in connection Closing Date, to assist with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant Purchaser with regard to its reasonable requests related to the Fee Letter.Business. The agreement shall be in a form prepared by Purchaser and shall contain such terms and conditions as the Purchaser deems appropriate, acting reasonably;
(f) To Search results of the extent not previously provided under public records of Ontario confirming the DIP Loan Agreementabsence of security interests, judgments, tax liens and bankruptcy proceedings which affect or could affect the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.Purchased Assets;
(g) The Agent All requisite governmental and the Lenders shall have had an opportunityregulatory approvals of, if they so choose, exemptions from and consents required to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal consummate this Agreement shall have been satisfactory to the Agent in obtained and all respects.waiting periods prescribed by law shall have expired;
(h) All proceedings taken in connection with the execution of this Agreement, The Vendor shall have obtained all other Loan Documents consents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance approvals to the Agent.transfer of any contracts, licenses and other instruments being transferred which the Purchaser considers material to the Business;
(i) The Agent All right, title, interest in, and to, the Purchased Assets shall have received a copy of the certificate or articles of incorporation or other constitutive documentsbeen sold, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization assigned and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior transferred to the date Purchaser free and clear of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.all Encumbrances;
(j) The Agent Purchaser shall have received certificates of good standing, existence or be satisfied with its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).due diligence investigations;
(k) There The Vendor shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects have delivered all agreements or financial position obligations forming part of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.Purchased Assets;
(l) The Lenders Vendor shall be fully satisfied with have delivered all records of the compliance by the Loan Parties with any Business and all applicable lawsof the schedules attached hereto, statutesshall have been completed and updated, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.Purchaser’s satisfaction;
(m) The Borrower An officer’s certificate shall have received be signed and delivered to the proceeds Purchaser with respect to the veracity and accuracy of the Term Debt representations and warranties as at the Agent shall have entered into an Intercreditor Agreement with Closing Date in a form satisfactory to the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.Purchaser; and
(n) The Agent shall be satisfied with the terms and conditions Closing certificates, a ▇▇▇▇ of all material Debt (including, without limitation, the Term Debt) sale and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers usual closing documentation shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangementsdelivered.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement The obligations of the Banks to make Advances hereunder shall not become effective at such time as until the date on which each of the following conditions precedent having been is satisfied (or waived in accordance with Section 8.01):
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a manner counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Agents and the Banks and dated the Closing Date) of (i) ▇▇▇▇ ▇▇▇▇▇, counsel for the Borrower, substantially in the form of Exhibit C-1 and (ii) ▇▇▇▇▇▇ ▇▇▇▇▇ & Bockius LLP, New York counsel for the Borrower, substantially in the form of Exhibit C-2, in each case covering such other matters relating to the Borrower, the Loan Papers or the Transactions as the Majority Banks shall reasonably request. The Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower and the Acquisition Subsidiary, the authorization of the Transactions and any documentsother legal matters relating to the Borrower, agreements the Acquisition Subsidiary, the Loan Papers or other deliveriesthe Transactions, such documents, agreements and deliveries shall be all in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement Administrative Agent and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such dateits counsel.
(d) The Administrative Agent and the Lenders shall have received such opinions of counsel (concerninga certificate, among other thingsdated the Closing Date and signed by the President, entry a Vice President or a Financial Officer of the order Borrower, confirming compliance with the Plan conditions set forth in paragraphs (a) and (b) of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselSection 3.02.
(e) The Borrower Agents shall have paid received all fees and expenses of other amounts due and payable on or prior to the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated therebyClosing Date, including, without limitation pursuant to the Fee Letterextent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f) To All consents and approvals required to be obtained from any governmental authority or other Person in connection with the Acquisition shall have been obtained, except to the extent that failure to obtain any such consent or approval, individually or in the aggregate, could not previously provided under reasonably be expected to have a material adverse effect on the DIP Loan Agreementbusiness, assets, operations, financial condition or prospects of the Agent Borrower and its Subsidiaries, taken as a whole, or of Norcen and its subsidiaries, taken as a whole, and all applicable waiting periods and appeal periods shall have expired, in each case without the imposition of any materially adverse conditions. The Agents shall have received evidencecopies of the Acquisition Documents and all certificates, in formopinions and other documents delivered thereunder, scope, certified by a Financial Officer as complete and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreementcorrect.
(g) The Agent Agents shall be satisfied with the material terms 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall includeconditions (including, without limitation, verification purchase price) of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, the Acquisition and the results Acquisition Documents, including without limitation the terms and conditions of such examination the offer to be made by the Acquisition Subsidiary to purchase shares of Norcen's capital stock (the "Offer") and audit and appraisal shall have been satisfactory any subsequent merger, amalgamation or similar transaction to eliminate minority stockholders after consummation of the Agent in all respectsOffer (the "Merger").
(h) All proceedings taken The Existing Credit Agreements shall have been amended as provided in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the AgentSchedule IV.
(i) The Agent All conditions to the acceptance of shares of Norcen's capital stock pursuant to the Offer shall have received a copy of the certificate been satisfied (without giving effect to any amendment or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) waiver that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modifiedapproved by the Banks, rescinded or amended other than amendments and is in full force waivers that could not reasonably be expected to materially and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since adversely affect the date interests of the last amendment thereto shown on Banks) and shares representing at least 75% of the certificate outstanding shares of good standing furnished hereinabove, Norcen's common stock shall have been accepted for purchase pursuant to and (D) as to in accordance with the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its SecretaryOffer.
(j) The Agent If less than all the outstanding shares of Norcen's capital stock are being purchased by the Acquisition Subsidiary on the Closing Date, the Borrower shall have received certificates of good standingdelivered to the Agents a certificate to the effect that, existence or its equivalent with respect to each Loan Party certified as of a recent date the Closing Date, the Borrower is not aware of any material impediment that would render unlikely the consummation of the Merger and completion of the Acquisition on the terms contemplated by the appropriate Governmental Authorities Acquisition Documents without the imposition of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)any materially adverse conditions.
(k) There shall not be no material adverse change any litigation, administrative proceedings or other legal or regulatory actions pending or threatened which individually or in the business, operations, assets, properties, liabilities, profits, prospects aggregate (i) prevent or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes impose materially adverse conditions upon any of the Loan Documents Transactions or (ii) could reasonably be expected to have a material adverse effect on the business, assets, operations, financial condition or prospects of the Borrower and its Subsidiaries, taken as a whole, or of Norcen and its subsidiaries, taken as a whole.
(l) The consummation of the Transactions shall not (i) violate any applicable law, statute, rule or regulation or (ii) conflict with, or result in a default under, or any right to terminate or renegotiate, any material Debt or contract of the Borrower or any of its Subsidiaries or Norcen or any of its Subsidiaries. The Administrative Agent shall notify the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent Borrower and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk Banks of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expiredClosing Date, and no appeals (unless consented to by Agent) from the confirmation order such notice shall be outstandingconclusive and binding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of Notwithstanding the foregoing, the capital structure obligations of the Loan Parties Banks to make Advances hereunder shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt not become effective unless each of the Loan Parties foregoing conditions is satisfied (or waived pursuant to Section 8.01) at or prior to 3:00 p.m., New York City time, on March 16, 1998 (and, in the event such conditions are not so satisfied or waived, the Commitments shall be satisfactory to the Agentterminate at such time).
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: 364 Day Competitive Advance/Revolving Credit Agreement (Union Pacific Resources Group Inc)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through The following shall be conditions precedent to Macerich's obligation to consummate the transaction contemplated herein (w) hereof or Section 13.2(a)(ii) hereof:"Macerich's Conditions Precedent"):
(ai) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party Macerich shall have performed approved, in its sole and complied with all covenantsabsolute discretion, agreements and conditions contained herein and in the other Loan Documents which are required to be performed on or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to : (A) the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent Title Commitment and the Lenders shall have received such opinions Survey pursuant to Section 4 hereof, and (B) the results of counsel (concerning, among other things, entry its review of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall requestLeases, each such opinion to be in a formContracts, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent Operating Agreements and the Attorney Costs incurred in connection with any of Ground Lease and all the Loan Documents agreements, books, records and the transactions contemplated therebylike delivered to Macerich or made available to it hereunder, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall review may include, without limitation, verification Macerich having (1) verified to its satisfaction the accuracy of Inventorythe Rent Roll and the 9 mathematics and accuracy of the financial schedules, Accountsprojections and other financial data with respect to the Property which have heretofore been delivered to Macerich by Stonewood, (2) determined that the creditworthiness of the Tenants is within the financial risk parameters Macerich is willing to accept, (3) verified that it is willing to accept and be bound by the Operating Agreements, the Ground Lease and the Leases (including, but not limited to, minimum rentals to be paid, percentage rents, parking charges, common area maintenance charges, operating expense escalations, CPI increases, real estate tax escalations, Tenant allowances, termination and expansion rights and renewal options), (4) verified that the Property has sufficient parking to meet the requirements of the Operating Agreements and Leases and all applicable codes and other requirements of governmental authorities, and Combined Availability(4) verified the accuracy of the vacant space inventory which shall be delivered to Macerich by Stonewood.
(ii) Macerich shall have approved, in its sole and to conduct a pre-closing appraisalabsolute discretion, and on or before the Closing Date the results of such examination all soils, environmental, engineering and audit other physical due diligence tests and appraisal inspections of the Property and surrounding areas by firms selected by Macerich to perform the same. Notwithstanding anything to the contrary contained herein, no matters set forth in the exhibits or schedules attached hereto are to be deemed approved by Macerich and Macerich shall have been satisfactory the right to the Agent in all respectscomplete its due diligence tests and inspections.
(hiii) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent Macerich shall have received a copy and approved, in its sole and absolute discretion, at least two (2) days prior to the Closing (hereinafter defined):
(1) Executed estoppel certificates, dated not earlier than thirty (30) days prior to the date of Closing, substantially in the form of Exhibit G-1 ("Tenant Estoppel Certificate"), from all Tenants under Lease of the certificate or articles of incorporation or other constitutive documentsProperty (including without limitation, in each case amended to date, of from each of the Loan PartiesAnchors, certified as of hereinafter defined). Stonewood shall use best efforts to obtain all such estoppel certificates. In the event the condition contained above is not met notwithstanding Stonewood's best efforts, Macerich shall have the right, in its sole and absolute discretion, to allow Stonewood to provide a recent date by certification covering the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of same matters set forth in such estoppel to Macerich with respect to each of the Loan PartiesTenants for which an estoppel certificate was required but not delivered hereunder (and if so required, Stonewood shall be obligated hereunder to provide such certifications). Any Tenant Estoppel Certificate received by Macerich after the Closing shall enable Stonewood to remove its certification with respect to the Tenant for which the Tenant Estoppel Certificate is received to the extent that 10 such Tenant Estoppel Certificate confirms the information set forth in Stonewood's certification;
(2) Executed estoppel certificates, dated the Closing Date and certifying not earlier than thirty (A30) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date days prior to the date of the resolution described in item (B) belowClosing, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
G-2 (n) The Agent shall be satisfied with the terms "Operating Agreement Estoppel Certificate"), from each of Mervyn's, J.C. P▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., Sears Roebuck and conditions of all material Debt Co. a▇▇ ▇▇▇ May Department Stores Company (includingeach an "Anchor", without limitationand collectively, the Term Debt"Anchors") and all other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination persons or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating entities which are parties to the acquisition, ownership and transfer Operating Agreements (or any of Inventory of a Loan Party or otherwise.
(pthem) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiariesthe Operating Agreements to which such persons and/or entities are a party. Macerich agrees that it will use good faith efforts (at no cost or expense to Macerich) to assist Seller in obtaining all such Operating Agreement Estoppel Certificates; and
(3) An executed estoppel certificate, dated not earlier than thirty (30) days prior to the transactions contemplated by this Agreement and date of the other Loan Documents have been obtainedClosing, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable substantially in the judgment form of Exhibit G-3 ("Ground Lease Estoppel Certificate"), from the Agent that restrains, prevents or imposes materially adverse conditions upon any of lessor under the Loan Documents or any of the transactions contemplated therebyGround Lease respecting such Ground Lease.
(q1) The terms Title Company shall be committed to issue an ALTA Owner's Form B-1970 policy of all sourcing arrangements among title insurance insuring Macerich's fee simple interest in the Loan Parties Real Property, dated the day of the Closing, with liability in the amount of the Purchase Price, together with direct access reinsurance agreements and their suppliers shall have been fully disclosed subject only to the Agent Permitted Encumbrances, and shall contain, if available the Lenders following endorsements: (i) 203 (100 Modified Comprehensive); (ii) 100.6 (CC & Rs); (iii) 103.3 (Easements); (iv) 103.5 (Water); (v) 103.7 (Access); (vi) 115.2 (No Violation of Covenants); (vii) 116 (Designation of Improvements); (viii) 116.1 (Survey); (ix) 116.4 (Contiguity); (x) 116.7 (Subdivision); (xi) 123.2 (Zoning); (xii) 124.1 (REA); (xiii) 248 (Fairway); (xiv) Tax Parcel; and there (xv) such other endorsements as Macerich shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.reasonably request (collectively, "Title Policy"), and
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s2) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order Surveyor shall be outstanding. All conditions precedent committed to confirmation and issue to Macerich the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to Survey approved by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the AgentMacerich.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on On the Closing DateDate (and unless waived by Macerich in its sole and absolute discretion) and except as described on Exhibit T, all Tenants and Anchors shall be in occupancy of their respective premises and in full compliance with the terms of their respective Leases and Operating Agreements.
(wvi) Stonewood shall have executed and delivered to Macerich a Certificate updating the representations and 11 warranties of Stonewood through Closing, and certifying that Stonewood has complied in all material respects with its obligations under this Agreement, which Certificate Stonewood covenants to deliver.
(vii) The Agent Board of Directors of the general partner of Macerich shall have received approved of the transaction contemplated by this Agreement on or before 5:00 p.m. (Central Time) on August 5, 1997.
(viii) Stonewood shall have performed all documents of its obligations under this Agreement in all material respects, and instrumentsis ready, including Uniform Commercial Code financing statementswilling and able to close.
(b) The following shall be a condition precedent to Stonewood's obligation to consummate the transaction contemplated herein ("Stonewood's Condition Precedent"): Macerich shall have performed all of its obligations under this Agreement in all material respects, required by law or reasonably requested and is ready, willing and able to close.
(c) Macerich's Conditions Precedent and, Stonewood's Condition Precedent are hereinafter collectively referred to as the "Conditions Precedent" and each as a "Condition Precedent". In the event any Condition Precedent is not satisfied by the Agent to be fileddate set for satisfaction of such Condition Precedent, registeredthe party for whose benefit the Condition Precedent is for may elect, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded by giving written notice to the other party and Escrow Holder (i) to terminate this Agreement, or (ii) to waive satisfaction of such Condition Precedent and proceed to consummate the AgentClosing. The acceptance A party's failure to give such written notice of termination (in the event a Condition Precedent for such party's benefit has not been satisfied by the Borrower date set for satisfaction of any Loans made or Letters of Credit issued on the Closing Date such Condition Precedent) shall be deemed an election to be a representation and warranty made by terminate this Agreement. In the Borrower event either party elects to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of terminate this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in pursuant to this Section 10.1 have been fulfilled to 6, then the satisfaction provisions of such Lender, (iiSection 16(c) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.hereof shall apply. 12
Appears in 1 contract
Conditions Precedent to Closing. Date This The effectiveness of this Agreement shall become effective at such time as is subject to and conditional upon the prior satisfaction of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses precedent: (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This duly executed copies of this Agreement and all of the other Loan Documents will have been delivered to the Lender; (b) duly executed copies of the Security will have been delivered to the Lender, all certificates, if any, representing all Equity Interests or other securities pledged (along with stock powers duly executed in blank) by each party thereto the Restricted Parties will have been delivered to the Lender and each Loan Party shall such financing statements or other registrations of the Security, or notice thereof, will have performed and complied with been filed and/or registered, entered or recorded in all covenants, agreements and conditions contained herein and offices of public record necessary or desirable in the other Loan Documents which opinion of the Lender to preserve or protect the charges and security interests created thereby, in each case, that are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist delivered on the Closing Date; (c) the Lender will have completed and have been satisfied with their business, or would exist after giving effect insurance tax, environmental, financial model and legal due diligence with respect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
Group Members (d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry including receiving copies of the order confirming the Plan Organizational Documents of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(fExcluded Foreign Subsidiaries) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been due diligence will be satisfactory to the Agent Lender; (d) a duly executed Compliance Certificate will have been delivered to the Lender confirming that the Borrower is in all respects.
(h) All proceedings taken in connection compliance with the execution financial covenants in Section 8.02; - 51 - (e) the Lender will have received certificates of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance insurance acceptable to the Agent.
Lender showing, inter alia, the Lender as first loss payee and additional insured, as applicable, as its interest may appear on all Property and third party liability insurance policies of the Restricted Parties; (f) a currently dated letter of opinion of ▇▇▇▇▇▇▇▇’s Counsel and of local counsel to the Restricted Parties in the United States as to such matters and in such form as Lender’s Counsel, acting reasonably, deems appropriate addressed to the Lender and to ▇▇▇▇▇▇’s Counsel will have been delivered to the Lender; (g) the Lender will have received a certificate of an officer of each Restricted Party, certifying, inter alia: (i) The Agent shall have received copies of its Organizational Documents, (ii) the resolutions authorizing the execution and delivery of, and performance by, such Restricted Party of its obligations under the Loan Documents to which such Restricted Party is a copy party and the transactions contemplated therein; (iii) a certificate as to the incumbency of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy officers of such Loan Party's By-laws as in effect on Restricted Party executing the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded any other documents or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since instruments to be provided pursuant to the date provisions of the last amendment thereto shown on Loan Documents; and (iv) such Restricted Party has received all shareholder, regulatory, governmental and other approvals required in order for such Restricted Party to enter into the Loan Documents to which it is a party and to perform its obligations thereunder; (h) a certificate of good standing furnished hereinabove, and status (Dor equivalent) as to the incumbency and specimen signature in respect of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Restricted Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall will have been delivered to the Agent Lender; (i) the representations and warranties deemed to be made pursuant to Section 7.01 will be true and correct and an officer of the Borrower will have certified as such additional instruments to the Lender; (j) no Default or Event of Default will have occurred and documents be continuing on the Closing Date, or would result from any Restricted Party’s entry into this Agreement or the transactions contemplated hereunder and an officer of the Borrower will have certified as such to the Agent or its counsel reasonably may require or request.
Lender; (sk) The Bankruptcy Court shall no Material Adverse Change will have entered occurred and be existing and an order confirming officer of the Borrower's Plan Borrower will have certified as such to the Lender; (l) the Lender will have received evidence satisfactory to the Lender that all Debt of Reorganizationthe Group Members (other than Permitted Debt) has been repaid and performed in full; (m) releases, which shall discharges, estoppels and postponements that are required (if any) in the discretion of the Lender (in registerable form where necessary) with respect to all Encumbrances affecting the Collateral that are not Permitted Encumbrances, if any, will have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating delivered to the confirmation order shall Lender; (n) the Lender will have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the received payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent payable to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization Lender that are due and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued payable on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (including (i) all conditions precedent in this Section 10.1 have been fulfilled the upfront fee payable pursuant to the satisfaction of such LenderFee Letter, and (ii) the decision reasonable fees and disbursements of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.▇▇▇▇▇▇’s Counsel);
Appears in 1 contract
Sources: Credit Agreement (Docebo Inc.)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as On or prior to the date hereof, each of the following conditions precedent having shall have been satisfied in a manner satisfactory and thereafter this Amendment shall be binding upon and inure to the Agent (benefit of the Borrower and the Lender and their respective successors and assigns. Borrower agrees that the failure to satisfy any of the conditions set forth in this Amendment shall in no way affect or impair the case obligations of Borrower or be construed as a waiver by the Lender of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to Lender’s rights under the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:Credit Agreement.
(a) This Agreement The Lender shall have received each of the following:
i. this Amendment, duly authorized and the other Loan Documents have been executed by each party thereto the Borrower;
ii. an Amended and each Loan Party shall have performed Restated Promissory Note, dated the date hereof and complied with all covenants, agreements and conditions contained herein and otherwise in the other Loan Documents which are required to be performed or complied with form attached hereto as Exhibit A, duly executed by such Loan Party before or on such Closing Date.Borrower;
(b) All representations iii. an Acknowledgement and warranties made hereunder and in the other Loan Documents shall be true and correct Confirmation of Grantors, dated as of the Closing Date date hereof and otherwise in the form attached hereto as if made on such date (both immediately prior toExhibit B, duly executed by Holdings and after giving effect to, such extension of credit).Borrower;
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry iv. resolutions of the order confirming the Plan board of Reorganization directors of Borrower approving and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance by Borrower of this Agreement Amendment and the other Loan Documents to which it is a party contemplated hereby and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date borrowing of the last amendment thereto shown on Additional Term A Loan for the certificate of good standing furnished hereinabovepurposes specified herein, and (D) as to signature and incumbency certificates of the incumbency and specimen signature officers of each of such Loan Party's officers Borrower executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement Amendment and the other Loan Documents have been obtaineddelivered in connection herewith, and remain all certified by Borrower’s secretary or assistant secretary as being in full force and effecteffect without modification;
v. such other agreements, documents, instruments and certificates as the Lender may reasonably request; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable and
vi. in connection with the advance of the Additional Term A Loan, cash in the judgment amount of $705,000, being the additional commitment fee payable pursuant to Section 2.7.2 of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated therebyCredit Agreement.
(qb) The terms of all sourcing arrangements among the Loan Parties and their suppliers Borrower shall have been fully disclosed to the Agent duly and the Lenders properly performed, complied with and there shall have been a resolution satisfactory to the Agent observed each of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments its covenants, agreements and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent obligations contained in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAmendment.
Appears in 1 contract
Sources: Credit Agreement (Compass Group Diversified Holdings LLC)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as OCII will authorize the close of the Loan upon satisfaction of the conditions in this Section.
(a) Borrower will authorize Loan closing upon satisfaction of the following conditions precedent having been satisfied conditions:
(i) Borrower shall have obtained the following Project financing, all on terms and in amounts acceptable to Borrower and OCII pursuant to Section 4.5 (a)(iv)1: (1) Borrower shall receive a manner satisfactory loan or loans for Project development costs, made from the proceeds of the sale of tax-exempt bonds allocated to to the Agent issuer by the California Debt Limit Allocation Committee; (2) Borrower shall receive an allocation of four percent (4%) federal low income housing tax credits by TCAC pursuant to Section 42 of the Internal Revenue Code of 1986, as amended; (3) Borrower shall obtain an equity investment in the Project from a tax credit investor; and (4) Borrower shall obtain additional Project financing from any other required lenders (collectively, the “Project Financing”);
(ii) the lenders and investors associated with the Project Financing are unconditionally prepared to close and fund their financing; and
(iii) Borrower shall have executed the Ground Lease and (subject to such limitations or reservations as may be referenced in the Ground Lease) accepted the condition of the Site.
(b) OCII will authorize the Loan closing upon satisfaction of the following conditions:
(i) Borrower must have delivered to OCII fully executed (and in for documents to be recorded, acknowledged) originals of the case of any following documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), OCII: (i) the Note; (ii) this Agreement (in each case with triplicate) including the consent Deed of Trust and Declaration of Restrictions; (iii) an opinion of Borrower’s counsel in form and substance reasonably acceptable to OCII; (iv) the Majority Lenders to the extent required in clauses Authorizing Resolutions; and (av) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the any other Loan OCII Documents have been executed reasonably requested by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing DateOCII.
(bii) All representations Borrower must have delivered to OCII Borrower's Charter Documents.
(iii) Borrower must have delivered to OCII insurance endorsements and, if requested by OCII, copies of policies for all insurance required under Exhibit G of this Agreement.
(iv) Borrower must submit a complete services plan and warranties made hereunder and in budget which has been approved by the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).OCII or MOHCD..
(c) No Default or Event As a condition of Default shall exist Loan closing, OCII must be in receipt of the Master Developer Subsidy, which is included in the Funding Amount, pursuant to Section 5.4 (a) and (c) of the Below Market Rate Housing Plan component of the DDA with CP Dev Co which states that the Master Developer Subsidy must be provided “on the date of the closing of the construction loan” for the applicable phase. After the Loan Closing Date, OCII shall be responsible for advancing the full Funding Amount (including amounts derived from or would exist after giving effect calculated by reference to the Loans Master Developer Subsidy) as and when due to be made on Borrower pursuant to the terms of this Agreement and expressly agrees that the Borrower will not, after such date time, bear any risk associated with the timing or the Letters amount of Credit Master Developer Subsidy available to be issued or the Credit Support to be provided on such dateOCII.
(d) The Agent and the Lenders shall have received such opinions “Commencement of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and Vertical Construction” conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date per Section 8 of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation DateDDA.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Loan Agreement
Conditions Precedent to Closing. Date This Agreement The Borrowers shall become effective at such time as ensure that each of the following conditions precedent having been are satisfied in a manner satisfactory to on the Agent Closing Date:
(and in a) the case Agents have received all of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be the following in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofAgents acting reasonably:
(ai) This original copies of each of this Agreement and the other Loan Documents have been each Guarantee duly executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.thereto;
(bii) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, Certificate of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying Obligor (A) that attached thereto is a attaching true and complete copy copies of (1) the Constitutional Documents of such Loan Party's By-laws as in effect on the date of such certificate Obligor and at (2) all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted necessary internal corporate action taken by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing Obligor to authorize the execution, delivery and performance of this Agreement each Loan Document and the other consummation of the transactions contemplated thereby, (B) as to incumbency and true signatures of each Senior Officer executing the Loan Documents to which it such Obligor is a party and that such resolution has not been modified, rescinded or amended and is in full force and effectparty, (C) that such Loan Party's certificate or articles confirming the matters set out in paragraphs (c) and (d) below in the case of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, Cognos and (D) as to such other matters as the incumbency Agent may reasonably require;
(iii) opinions from the Borrowers’ Counsel addressed to the Senior Lenders and specimen signature Lender’s Counsel in respect of each of such Obligor and the Loan Party's officers executing this Agreement or any other Loan Document delivered Documents in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as form and substance satisfactory to incumbency and signature of its Secretary.the Agents acting reasonably;
(jiv) The a duly completed and signed Compliance Certificate for the Test Period ended May 31, 2007; and
(v) such other supporting documents as the Agents may reasonably require;
(b) all Fees payable to the Senior Lenders on the Closing Date, and all accrued fees, costs and expenses (invoiced or estimated) payable by each Agent shall have received certificates of good standing, existence or its equivalent with to the Lender’s Counsel (not exceeding (i) CAD100,000 for Lender’s Canadian counsel and (ii) USD50,000 for Lender’s US counsel) in respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization negotiation, execution, delivery and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered entry into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any effect of the Loan Documents or any are paid in full;
(c) the representations and warranties of each Obligor made under each Loan Document are true, accurate and complete in all material respects on and as of the transactions contemplated thereby.Closing Date; and
(qd) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have Default has occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered that is continuing on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Cognos Inc)
Conditions Precedent to Closing. Date This Agreement Bank shall become effective at such time as not be obligated to ------------------------------- make any of the Loans or incur any Letter of Credit Obligations, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedent having have been satisfied in a manner satisfactory to Bank or waived in writing by Bank:
(a) Bank shall have received each of the Agent (documents set forth on the Schedule of Documents, each duly executed by the appropriate parties and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent Bank;
(A) Bank shall have received a fully executed original of a pay-off letter satisfactory to Bank confirming that all of the Majority Lenders Prior Lender Obligations will be repaid in full from the proceeds of the initial Loan and all Liens upon any of the property of Borrower or any of its Subsidiaries in favor of Prior Lender shall be terminated by Prior Lender immediately upon such payment; and (B) all letters of credit issued or guaranteed by Prior Lender shall have been cash collateralized, supported by a guaranty of Bank or supported by a Letter of Credit issued pursuant to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:this Agreement as mutually agreed upon by Bank, Borrower and Prior Lender; and
(aii) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party Bank shall have performed and complied with received a fully executed original of a pay-off letter satisfactory to Bank confirming that all covenants, agreements and conditions contained herein and of obligations of Borrower to LHF will be repaid in full on the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations , and warranties made hereunder and all Liens upon any of the property of Borrower or any of its Subsidiaries in the other Loan Documents favor of LHF shall be true and correct as of the Closing Date as if made on terminated by LHF immediately upon such date (both immediately prior to, and after giving effect to, such extension of credit)payment.
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders Bank shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization satisfactory evidence that Borrower and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, its Subsidiaries have obtained all required consents and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, approvals of all insurance coverage as required by the Agreement.
(g) The Agent and the Lenders shall have had an opportunityPersons, if they so chooseincluding all requisite Governmental Authorities, to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date consummation of the last amendment thereto shown Related Transactions;
(d) all of the assets supporting the initial Loans to be made and Letters of Credit to be issued and the amount, if any, of the reserves to be established on the certificate Closing Date shall be sufficient in value, as determined by Bank, to provide Borrower with Net Borrowing Availability of good standing furnished hereinabovenot less than $1,750,000 (after giving effect to such initial Loans and Letters of Credit and the amount, if any, of the reserves to be established on the Closing Date in accordance with this Agreement), without any deterioration in Borrower's accounts payable or increase in Borrower's other current liabilities above the average of those reflected on Borrower's balance sheet for the three months preceding the Closing Date;
(e) payment by Borrower of all fees, costs, and expenses of closing (Dincluding reasonable fees of consultants and counsel to Bank presented as of the Closing Date);
(f) as no action, proceeding, investigation, regulation, or legislation shall have been instituted, threatened, or proposed before any court, Governmental Authority, or legislative body to the incumbency and specimen signature of each of such Loan Party's officers executing enjoin, restrain, or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities consummation of the state transactions contemplated hereby or other jurisdiction of incorporation or organization thereby and that, in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the businessBank's sole judgment, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating would make it inadvisable to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to consummate the transactions contemplated by this Agreement or any other Loan Document;
(g) Bank shall have completed its business and legal due diligence, including a roll forward of its previous Collateral audit, with results satisfactory to Bank;
(i) Bank shall have received fully executed copies of the Subordinated Note and each of the other Loan Documents have been obtainedRelated Transactions Documents, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation each of which shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects Bank and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral its counsel, and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision Related Transactions shall have been consummated in accordance with the terms of such Lender the Subordinated Note and the other Related Transactions Documents; and
(i) no Material Adverse Effect shall have occurred since the most recent audited Financial Statements delivered to execute and deliver Bank prior to the Agent an executed counterpart Closing Date. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Section 2.1 shall control, ----------- ----------- and Borrower shall have no rights under this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to Loan Document until each of the satisfaction conditions of any condition precedent set forth in this Section 10.1, and (iii) all documents sent 2.1 has been complied with ----------- to such Lender for approval, consent Bank's satisfaction or satisfaction were acceptable to such Lenderspecifically waived in writing by Bank.
Appears in 1 contract
Conditions Precedent to Closing. Date This The obligations of the Parties under this Agreement shall become effective be and are subject to fulfillment, prior to or at such time as the Closing, of each of the following conditions precedent having been satisfied in a manner satisfactory to conditions: that the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party Parties shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before them prior to or on such Closing Date.
(b) All at the time of the Closing; that the Parties shall be reasonably satisfied as a result of their due diligence and review of the other books and records that the representations and warranties made hereunder and in by the other Loan Documents shall be Parties in this Agreement are materially true and correct as of correct; that the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate fairness opinion from Capital Link, L.C., or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date another independent third-party mutually acceptable by the Secretary of State or other appropriate official of Parties (the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties"Fairness Opinion"), dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the terms hereof are fair and reasonable to the Parties from a financial point of view and the Fairness Opinion has not been withdrawn; Exhibit 2.1 20 that the value of EE&G mutually determined by EE&G Management and ECOS in good faith prior to Closing based on the range of values set forth in the Fairness Opinion be less than $750,000 at Closing; no preliminary or permanent injunction or other Loan Documents order or decree by any federal or state court which prevents the consummation of the Transactions or changes the terms or conditions of this Agreement shall have been obtained, issued and remain in full force and effect; all applicable waiting periods shall have expired without provided, however, that if any action being taken by any competent authority; and no law such order or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers injunction shall have been fully disclosed issued, each Party agrees to use its reasonable efforts to have any such injunction lifted; the representations and warranties of TMTI and the Sellers contained in this Agreement and in any document delivered in connection herewith shall be true and correct in all material respects, as of the Closing (except to the Agent extent such representations and the Lenders warranties speak of a specified earlier date and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents except as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified specifically contemplated by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent Company shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction certificate of the Agent. The acceptance by the Borrower President of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the BorrowerTMTI, dated the Closing Date, certifying to such effect. Execution ; the Company shall have received from TMTI certified copies of the resolutions of TMTI's Board of Directors and delivery to shareholders approving and adopting this Agreement and the Agent by a Lender of a counterpart Transactions; from the date of this Agreement through the Closing, there shall not have occurred any event that has had a Material Adverse Effect on the Company or TMTI; TMTI shall have executed and delivered such other documents and taken such other actions as the Company shall reasonably request; the representations and warranties of the Company, and EE&G Management contained in this Agreement and in any document delivered in connection herewith shall be deemed confirmation true and correct, in all material respects, as of the Closing (except to the extent such representations and warranties speak as of a specified earlier date and except as specifically contemplated by this Agreement), and TMTI shall have received a certificate of the Chairman or President of the Company, dated the Closing Date, certifying to such Lender that effect; TMTI shall have received from the Company certified copies of the resolutions of the Company's Board of Directors and shareholders approving and adopting this Agreement and the Transactions; the Company shall have received the opinion of Deutch and ▇▇▇▇ as to the matters set forth in Exhibit B; the Company shall have assigned all of the agreements set forth on Item 8.7 of the Disclosure Schedule to EE&G; TMTI shall have received the opinion of Akerman, Senterfitt & ▇▇▇▇▇▇, P.A. as to the matters set forth in Exhibit A. This Agreement and the Transactions shall have been approved and adopted by the requisite vote of the shareholders of the Company; and The Information Statement shall have been (i) all conditions precedent in this Section 10.1 have been fulfilled to filed with, and accepted by, the satisfaction of such Lender, SEC and (ii) mailed to all of the decision of such Lender to execute and deliver Company's shareholders at least twenty (20) calendar days prior to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.Closing. Exhibit 2.1 21
Appears in 1 contract
Conditions Precedent to Closing. Date This On the date hereof (or, in the case of the items listed in paragraphs (b) and (d) of this Section, on or prior to the date of the first Borrowing under this Agreement):
(a) The Agent (or its counsel) shall have received either (i) a counterpart of this Agreement shall become effective at such time as and of the following conditions precedent having been satisfied in a manner LLC Guarantee signed on behalf of each party thereto, or (ii) written evidence satisfactory to the Agent (which may include telecopy transmissions of signed signature pages) that this Agreement and of the LLC Guarantee have been signed on behalf of each party thereto.
(b) The Agent shall have received a favorable written opinion of (i) H▇▇▇▇ & H▇▇▇▇▇▇ LLP, counsel to the Borrower, to the effect and covering those matters set forth in Exhibit C-1 hereto, and (ii) C▇▇▇ ▇. ▇▇▇▇▇, Assistant General Counsel of the case of any documentsBorrower, agreements or other deliveries, to the effect and covering those matters set forth in Exhibit C-2 hereto. The Borrower hereby instructs its counsel to deliver such documents, agreements opinions to the Agent.
(c) All legal matters incidental to this Agreement and deliveries the Borrowings hereunder shall be satisfactory to the Lenders and to Cravath, Swaine & M▇▇▇▇ LLP, counsel for the Agent.
(d) The Agent shall have received such documents and certificates as the Agent or its counsel shall reasonably have requested relating to the organization, existence and good standing of the Borrower and Janus Capital Management LLC, the authorization of the Transactions and any other legal matters relating to the Borrower, Janus Capital Management LLC, this Agreement or the Transactions, all in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective its counsel.
(e) The Borrower Agent shall have paid all fees received a certificate, dated the date hereof and expenses signed by a Financial Officer of the Agent Borrower, confirming compliance with the conditions precedent set forth in paragraphs (b) and the Attorney Costs incurred in connection with any (c) of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee LetterSection 4.01.
(f) To the extent not previously provided under the DIP Loan Agreement, the The Agent shall have received evidence, in form, scope, all Fees and substance, reasonably satisfactory other amounts due and payable on or prior to the Agent, of all insurance coverage as required by the Agreementdate hereof.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them it that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this commitments under the Existing Credit Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent terminated and the Lenders and there all amounts outstanding or accrued thereunder, including all fees, shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangementspaid in full.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Credit Facility Agreement (Janus Capital Group Inc)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof The obligations of ANBT and the SELLERS under this Agreement shall be and are subject to fulfillment, prior to or Section 13.2(a)(ii) hereofat the Closing, of each of the following conditions:
(ai) This Agreement That E▇▇▇'▇ and MANAGEMENT's representations and warranties contained herein shall be true and correct at the other Loan Documents have been time of Closing as if such representations and warranties were made at such time, and MANAGEMENT will deliver an executed by each party thereto certification confirming the foregoing;
(ii) That E▇▇▇ and each Loan Party MANAGEMENT shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before them prior to or on such Closing Date.at the time of the Closing;
(iii) That E▇▇▇'▇ directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly ANBT led and held, shall have properly approved all of the matters required to be approved by E▇▇▇'▇ directors and shareholders, respectively;
(iv) That E▇▇▇'▇ Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; and
(b) All The obligations of E▇▇▇ and MANAGEMENT under this Agreement shall be and are subject to fulfillment, prior to or at the Closing of each of the following conditions:
(i) That ANBT 's and SELLERS' representations and warranties made hereunder and in the other Loan Documents contained herein shall be true and correct as at the time of the Closing Date as if such representations and warranties were made on at such date (both immediately prior to, time and after giving effect to, such extension of credit).ANBT and the ANBT PRINCIPALS shall deliver an executed certification confirming the foregoing;
(cii) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent That ANBT and the Lenders ANBT PRINCIPALS shall have received such opinions of counsel (concerningperformed or complied with all agreements, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated required by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including performed or complied with by them prior to or at the Existing Letters time of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.Closing; and
Appears in 1 contract
Sources: Acquisition Agreement (Oncthera Inc)
Conditions Precedent to Closing. Date This Agreement The Commitments of the Lenders shall not become effective at such time as unless and until (iv) the following conditions precedent having been satisfied set forth in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent Section 3.01 of the Majority $375,000,000 5-Year Revolving Credit Agreement, dated as of the date hereof, among the Company, the Banks, the Lenders from time to time party thereto and Citibank, N.A., as Administrative Agent shall have been satisfied, (v) the extent required Existing Facilities shall have been terminated and all amounts outstanding thereunder shall have been paid in clauses full and (avi) through (w) hereof or Section 13.2(a)(ii) hereofthe Administrative Agent shall have received the following:
(a) This Agreement and The A Notes to the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenantsorder of the Lenders, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Daterespectively.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as Certified copies of the Closing Date as if made on such date (both immediately prior toresolutions of the Board of Directors of the Company approving this Agreement and the Notes, and after giving effect toof all documents evidencing other necessary corporate action and governmental approvals, such extension of credit)including the NCUC Order and the SCPSC Order, with respect to this Agreement and the Notes.
(c) No Default A certificate of the Secretary or Event an Assistant Secretary of Default shall exist on the Closing DateCompany, or would exist after giving effect dated as of the date hereof, certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Loans Notes and the other documents to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such datedelivered hereunder.
(d) The Agent and the Lenders shall have received such opinions A certificate of counsel (concerning, among other things, entry a Responsible Officer of the order confirming Company, dated as of the Plan date hereof, certifying (i) the accuracy of Reorganization the representations and proper notice having been givenwarranties contained herein and (ii) that no event has occurred and is continuing which constitutes an Event of Default or which would constitute an Event of Default but for the Loan Parties as the Agent requirement that notice be given or any Lender shall requesttime elapse, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselor both.
(e) The Borrower shall have paid Certified copies of all fees required governmental approvals and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letterauthorizations.
(f) To Certified copy of the extent not previously provided under Restated Charter and By-Laws of the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the AgreementCompany.
(g) The A favorable opinion of counsel for the Company, substantially in the form of Exhibit D-1 hereto and as to such other matters as any Lender through the Administrative 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respectsmay reasonably request.
(h) All proceedings taken in connection with the execution A favorable opinion of this AgreementKing & Spalding, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent counsel for the Term Debt Administrative Agent, substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Progress Energy Inc)
Conditions Precedent to Closing. 13.1 Conditions Precedent to Obligations of Griptec and GTI Sub. ---------------------------------------------------------- The obligations of Griptec and GTI Sub are subject to the fulfillment or satisfaction at or prior to the Closing Date This Agreement shall become effective at such time as of each of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This Agreement The representations and warranties of USG and each of the USG Shareholders shall be true and correct in all material respects as of the Closing Date; and USG and the other Loan Documents USG Shareholders shall have been executed by each party thereto delivered to Griptec and each Loan Party GTI Sub a certificate of an executive officer, dated as of the Closing Date, to the foregoing effect.
(b) USG and the USG Shareholders shall have performed and complied with all covenants, agreements and covenants or conditions contained herein and in the other Loan Documents which are required of them by this Agreement to be performed or and complied with by such Loan Party before or on such it prior to the Closing Date.
(b) All representations ; and warranties made hereunder USG and in the other Loan Documents USG Shareholders shall be true have delivered to Griptec and correct GTI Sub a certificate of an executive officer, dated as of the Closing Date as if made on such date (both immediately prior toDate, and after giving effect to, such extension of credit)to the foregoing effect.
(c) No Default material adverse change in the condition (financial or Event otherwise), operations, assets, liabilities, business or prospects of Default the business of USG shall exist on have occurred, whether or not such change shall have been caused by the deliberate act or omission of USG and/or any of the USG Shareholders, and USG and the USG Shareholders shall have delivered to Griptec and GTI Sub a certificate of an executive officer, dated as of the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such dateforegoing effect.
(d) The Agent and the Lenders Bank shall have received such opinions of counsel (concerning, among other things, entry consented to the transfer of the order confirming Bank Loan on terms acceptable to Griptec or shall have agreed to terminate its security interest in the Plan assets of Reorganization and proper notice having been given) for USG upon payment in full of the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselBank Loan.
(e) The Borrower Griptec shall have paid approved, in its sole and absolute discretion, the terms of all fees contracts to which USG is a party, including those with ARC Industries, Chandler, Arizona; Medway Plastics, Long Beach, California; and expenses of the Agent World-Line Inc., Red Springs, North Carolina; and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated therebyopen purchase order from Cobra Golf, includingVista, without limitation pursuant to the Fee LetterCalifornia.
(f) To the extent not previously provided under the DIP Loan AgreementGriptec shall have approved, in its sole and absolute discretion, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to suitability of each of the Agent, of all insurance coverage as required by the AgreementUSG Shareholders.
(g) The Agent Each director and the Lenders shall have had an opportunity, if they so choose, to examine the books officer of account and other records and files of the Loan Parties and to make copies thereofUSG, and each USG Shareholder, shall deliver to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate Griptec at or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described Closing a general release in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement form reasonably acceptable to Griptec and the other Loan Documents to which it is general release from each director and officer shall also include a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretaryresignation.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. Date This 4.2.1 Conditions to Obligations of Each Party The respective obligations of the Parties hereto to effect the transactions contemplated under this Agreement shall become effective at be subject to the satisfaction or (where permitted) waiver, on or by September 30, 2006 or such time other date as the Parties may agree (the Long Stop Date), of the following conditions:
(a) (i) the governmental or administrative approvals set forth in Schedule 4.2.1(a)(1) (the Governmental Approvals) and the third party consents set forth in Schedule 4.2.1(a)(2) (the Material Third Party Consents) shall have been obtained, either (x) unconditionally, (y) subject to the satisfaction of conditions precedent having been satisfied or commitments reasonably acceptable to the Buyer or (z), with respect to Governmental Approvals, tacitly or otherwise in a manner satisfactory to the Agent (and which, in the case reasonable opinion of Buyer’s legal counsel in the applicable jurisdiction, permits Buyer to proceed to effect the transactions contemplated under this Agreement without material risk of governmental action against Buyer, Buyer’s assets or the TE Assets, and (ii) any documents, agreements waiting period under the applicable governmental and administrative laws and regulations set forth in Schedule 4.2.1(a)(1) shall have expired or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to been terminated by the Agent)competent authorities, in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary Governmental Approval of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods Agreement;
(b) no action by a third party shall have expired without any action being taken by any competent authority; be pending and no law order, injunction or regulation shall be applicable in decree of any court, administrative body or arbitration tribunal which prevents the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any Closing of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers hereunder shall have been fully disclosed to issued and not vacated;
(c) the Agent and the Lenders and there Materiality Condition shall have been satisfied and either Seller or Buyer shall have made a resolution satisfactory request pursuant to the Agent of any liens arising from any such supply arrangements.Article 4.2.6
(ra) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.that Closing be effected;
(sd) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability reached agreement on the definitive versions of at least $25,000,000.the Ancillary Agreements and the Excluded Plant Lease Agreements; and
(ue) The Borrower's Plan of Reorganization the employee information and consultation requirements and any other employee information and consultation steps required under the order laws applicable to any part of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory TE Business in form and substance to connection with the Agent. Without limiting the generality of the foregoingtransactions contemplated in this Agreement, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderperformed.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Huntsman International LLC)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement The obligations of CMAC and the other Loan Documents have been SELLERS under this Agreement shall be and are subject to fulfillment, prior to or at the Closing, of each of the following conditions: (i) That MMI's representations and warranties contained herein shall be true and correct at the time of Closing as if such representations and warranties were made at such time, and will deliver an executed by each party thereto and each Loan Party certification confirming the foregoing; (ii) That MMI shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by them prior to or at the time of the Closing; (iii) That MMI's directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly called and held, shall have properly approved all of the matters required to be approved by MMI's directors and shareholders, respectively; (iv) That MMI's Board of Directors, by proper and sufficient vote, shall have approved this Agreement and the transactions contemplated hereby; approved the contemplated reverse split of MMI's outstanding Common Stock without changing either the authorized shares or the par value; approved the change of MMI's corporate name to a name selected by CMAC; approved the resignation of all of MMI's current directors and the election of up to three designees of CMAC to serve as directors in place of MMI's current directors; and will have approved such Loan Party before or on such Closing Date.
other changes as are consistent with this Agreement and approved by CMAC and MMI; and (b) All The obligations of MMI under this Agreement shall be and are subject to fulfillment, prior to or at the Closing of each of the following conditions: (i) That CMAC's and SELLERS' representations and warranties made hereunder and in the other Loan Documents contained herein shall be true and correct at the time of Closing as if such representations and warranties were made at such time and CMAC and the CMAC PRINCIPALS shall deliver an executed certification confirming the foregoing; That CMAC and CMAC PRINCIPALS shall have performed or complied with all agreements, terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of Closing; and 7. Termination This Agreement may be terminated at any time before or at Closing, by; (a) The mutual agreement of the Closing Date as if made on such date parties; (both immediately prior to, and after giving effect to, such extension of credit).
(cb) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
Any party if: (i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance Any provision of this Agreement and the other Loan Documents applicable to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects materially untrue or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall fail to be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement accomplished on or after the Consummation Datebefore March 31, 1999.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. Date This (a) Buyer’s obligation to acquire the Property is conditioned on all of the following, any or all of which may be expressly waived by Buyer, in writing, at its sole option:
(i) the Title Company shall have issued, or be irrevocably committed to issue, an owner’s policy of title insurance (the “Title Policy”) showing no liens or encumbrances on the Property other than Permitted Encumbrances;
(ii) all representations and warranties made by Seller and by DWA in this Agreement shall become effective at be true and correct in all material respects on and as of the Closing Date, as if made on and as of such time as the following conditions precedent having been satisfied in a manner satisfactory date, except to the Agent (and extent that they expressly relate to an earlier date, in the which case of any documents, agreements or other deliveries, such documents, agreements and deliveries they shall be true and correct in all material respects as of such earlier date;
(iii) Seller shall have delivered all of the documents and other items required pursuant to Section 5 and shall have performed all other covenants, undertakings and obligations to be performed by Seller at or prior to the Closing under this Agreement;
(iv) DWA shall have delivered all of the documents and other items required pursuant to Section 6 and shall have performed all other covenants, undertakings and obligations to be performed by DWA at or prior to the Closing under this Agreement;
(v) Buyer shall have received a phase I environmental audit, a seismic report, a zoning report, an ALTA survey, a property condition report, a valuation consulting letter, a square footage calculation analysis report and an appraisal (collectively, the “Reports”) with respect to the Property, in each case from a firm acceptable to Buyer and that is satisfactory in form and substance to Buyer; and
(vi) Buyer shall have received an opinion of local California counsel in form and substance reasonably satisfactory to Buyer with respect to the Agent), in each case with the consent enforceability of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement Lease and the other Loan Documents have been executed matters as reasonably requested by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing DateBuyer.
(b) All Seller’s obligation to sell the Property is conditioned on all of the following, any or all of which may be expressly waived by Seller, in writing, at its sole option:
(i) all representations and warranties made hereunder and by Buyer in the other Loan Documents this Agreement shall be true and correct in all material respects on and as of the Closing Date Date, as if made on and as of such date (both immediately prior todate, except to the extent that they expressly relate to an earlier date, in which case they shall be true and after giving effect to, correct in all material respects as of such extension of credit).earlier date; and
(cii) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders Buyer shall have received such opinions of counsel (concerning, among other things, entry delivered all of the order confirming the Plan of Reorganization documents and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation other items required pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan AgreementSection 7, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) Purchase Price, and shall have performed all other agreements of the Loan Parties covenants, undertakings and their Subsidiaries obligations to remain outstanding after be performed by Buyer at or prior to the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Purchase Agreement (DreamWorks Animation SKG, Inc.)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as on the date (“Closing Date”) that each of the following conditions precedent having has been satisfied (or waived in accordance with Section 15.1.1(d)(i) hereof):
(a) Each Loan Document shall have been duly executed and delivered to Administrative Agent by each of the signatories thereto, and Parent, PHR and each Obligor shall be in compliance with all terms of each Loan Document to which it is a manner party.
(b) Administrative Agent shall have received (i) acknowledgments of all filings or recordations necessary to perfect its Liens in the Collateral, or arrangements reasonably satisfactory to the Administrative Agent for such filings and recordations shall have been made (and all filing and recording fees and taxes in connection therewith shall have been duly paid or arrangements reasonably satisfactory to the case Administrative Agent for the payment of such fees and taxes shall have been made), and (ii) UCC and Lien searches and other evidence reasonably satisfactory to Administrative Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Administrative Agent shall have received any documentslandlord waivers, estoppels or collateral access letters to the extent reasonably requested by Administrative Agent.
(d) Administrative Agent shall have received duly executed Deposit Account Control Agreements on each Deposit Account (i) that is a collections account and (ii) as required by Section 8.5(b), Securities Account Control Agreements and agreements or other deliveriesestablishing each Dominion Account and related lockbox, such documentsin form and substance, agreements and deliveries with financial institutions, reasonably satisfactory to Administrative Agent.
(e) Administrative Agent shall be have received certificates, in form and substance satisfactory to the Agent)it, in from a knowledgeable Senior Officer of each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenantsBorrower certifying that, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans Transactions, (i) the Borrowers and the Obligors, taken as a whole, are Solvent; (ii) no Default exists; (iii) the representations and warranties set forth in Section 9 and any other Loan Document are true and correct in all material respects (without duplication of any materiality qualifier contained therein); and (iv) such Borrower has complied with all agreements and conditions to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for satisfied by it under the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee LetterDocuments.
(f) To the extent not previously provided under the DIP Loan Agreement, the Administrative Agent shall have received evidencea certificate of a duly authorized officer of Parent, in formPHR and each Obligor, scopecertifying (i) that attached copies of such Person’s Organic Documents, as applicable, are true and complete, and substancein full force and effect, reasonably satisfactory without amendment except as shown; (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility; and (iii) to the Agenttitle, name and signature of all insurance coverage each Person authorized to sign the Loan Documents on behalf of such Person, as required applicable. Administrative Agent may conclusively rely on this certificate until it is otherwise notified by the Agreementsuch Person in writing.
(g) The Administrative Agent shall have received a written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, as well as any local counsel to Parent, PHR and the Lenders shall have had an opportunityObligors, if they so choose, to examine the books of account in form and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been substance satisfactory to the Agent in all respectsAdministrative Agent.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Administrative Agent shall have received a copy copies of the certificate or articles charter documents of incorporation or other constitutive documentsParent, in PHR and each case amended to date, of each of the Loan PartiesObligor, certified as of a recent date by the Secretary of State or other appropriate official of the state or other such Person’s jurisdiction of its organization organization. Administrative Agent shall have received good standing certificates for Parent, PHR and dated as of a recent date; a certificate of each Obligor, issued by the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy State or other appropriate official of such Loan Party's By-laws as in effect on the date Person’s jurisdiction of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretaryorganization.
(ji) The Administrative Agent shall have received certificates of good standinginsurance for the insurance policies carried by Obligors, existence or its equivalent as well as all necessary endorsements naming Administrative Agent as an additional insured and lender loss payee with respect to each the Collateral, as the case may be, all in compliance with the Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)Documents.
(kj) There No event shall have occurred or circumstance exist since December 31, 2016 that has or could reasonably be expected to have a Material Adverse Effect and no material adverse change in the quality, quantity or value of any Collateral shall have occurred since December 31, 2016. Administrative Agent shall have completed its business, operationsfinancial and legal due diligence of Obligors, assetsincluding a field examination and inventory appraisal (other than with respect to refinery hydrocarbon inventory), propertieswith results satisfactory to Administrative Agent. No changes or developments shall have occurred, liabilitiesand no new or additional information, profitsshall have been received or discovered by Administrative Agent or the Lenders regarding Parent, prospects PHR and the Obligors after the date such due diligence investigation has completed that (i) either individually or financial position of in the Loan Parties as determined by aggregate, could reasonably be expected to have a Material Adverse Effect or (ii) purports to materially adversely affect the Transactions.
(k) Borrowers shall have paid all reasonable and documented fees and expenses to be paid to Administrative Agent and Lenders on the Majority Lenders in their sole discretionClosing Date (provided that invoices for expenses shall have been delivered to Borrower Agent one Business Day prior to the Closing Date).
(l) The Lenders Administrative Agent shall have received a certificate of a duly authorized Senior Officer of each Borrower demonstrating that upon giving effect to the issuance or deemed issuance of Letters of Credit and the funding of the Secured Notes, and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, Availability (based on such Borrowing Base Report) shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Partiesat least $20,000,000.
(m) The Borrower Administrative Agent shall have received evidence satisfactory to Administrative Agent that Company shall have consummated the transactions contemplated by the Secured Notes Indenture and that the gross proceeds of the Term Debt and Secured Notes received by the Agent Company shall have entered into be in an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E heretoaggregate amount not less than $300,000,000.
(n) The Administrative Agent shall be satisfied with the terms and conditions of all material Debt have received (including, without limitation, the Term Debti) and other agreements pro forma consolidated financial statements of the Loan Parties Parent and their its Subsidiaries giving effect to remain outstanding after the Transactions and the funding of the Secured Notes on the Closing Date and a one-year forecast prepared by management of the Company (includingeach in form reasonably satisfactory to Administrative Agent) including (A) a balance sheet, without limitation(B) an income statement, any subordination and (C) such additional information as Administrative Agent may reasonably request, regarding projections for the 2018 fiscal year, (ii) consolidated financial statements of the Parent and its Subsidiaries for the Fiscal Quarter ended September 30, 2017, and (iii) the annual (or other intercreditor provisions contained therein or applicable audited) financial statements of Parent and its Subsidiaries for the Fiscal Years ended 2014, 2015 and 2016 and all amendments thereto).
(o) The Administrative Agent and Lenders shall be reasonably satisfied with the all intercompany arrangements relating to capital structure of the acquisition, ownership Company and transfer of Inventory of a Loan Party or otherwiseits Subsidiaries.
(p) The Administrative Agent and the Lenders shall have received evidence reasonably satisfactory to them that the Existing Credit Agreements have been, or on the Closing Date are being, terminated and all material requisite governmental and material third party consents and approvals (includingLiens securing obligations under the Existing Credit Agreements have been, without limitationor on the Closing Date are being, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated therebyreleased.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Administrative Agent shall have received results of searches or other evidence reasonably satisfactory received, at least five Business Days prior to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received , all documents documentation and instrumentsother information required by Governmental Authorities under applicable “know your customer” and anti-money laundering rules and regulations, including Uniform Commercial Code financing statementsthe PATRIOT Act, required by law or that has been reasonably requested by the Administrative Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderLenders.
Appears in 1 contract
Sources: Loan and Security Agreement (Par Pacific Holdings, Inc.)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:Buyer's obligation to effect the Merger shall be subject to satisfaction of all of the conditions set forth in this subparagraph 7.1
(a) This Agreement (unless expressly waived in writing by it at, or any time prior to, Closing):
(i) The representations and warranties of the Shareholders, CDFG and the other Loan Documents Subsidiaries contained in this Agreement or in any certificate delivered pursuant hereto by or on behalf of the Shareholders, CDFG, or any Subsidiary shall have been executed by each party thereto true and complete when -50- 56 made and shall also be true and complete at and as of the time of Closing (except for changes permitted under Section 5.1 of Article V).
(ii) The Shareholders, CDFG, and each Loan Party Subsidiary shall have performed and complied with caused all covenants, agreements and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before each of them prior to or on such at Closing Dateto be so performed or complied with.
(biii) All representations The Shareholders shall have delivered to Buyer a certificate, signed by each of the Shareholders and warranties made hereunder and in the other Loan Documents shall be true and correct dated as of the Closing Date Closing, certifying as if made on such date to the fulfillment of the conditions set forth in clauses (both immediately prior to, i) and after giving effect to, such extension (ii) of creditthis subparagraph 7.1(a).
(civ) No Default or Event The President of Default CDFG and each Subsidiary shall exist on have delivered to Buyer a certificate, signed by each of them and dated as of the Closing DateClosing, or would exist after giving effect certifying as to the Loans to be made on such date or fulfillment of the Letters conditions set forth in clauses (i) and (ii) of Credit to be issued or the Credit Support to be provided on such datethis subparagraph 7.1(a).
(dv) The Agent and the Lenders No action or proceeding shall have received such opinions been instituted and remain pending by or before any court or other governmental body or arbitration tribunal seeking, and there shall not be in effect any injunction, order or decree of counsel a court of competent jurisdiction the effect of which is, (concerning, among other things, entry x) to restrain or prohibit or to recover damages in respect of the transactions contemplated by this Agreement, (y) to revoke or suspend any material license, permit, order confirming or approval, or (z) to question the Plan validity or legality of Reorganization and proper notice having been given) for the Loan Parties as the Agent this Agreement or any Lender shall request, each such opinion action taken or to be in a form, scopetaken pursuant hereto or the consummation of the transactions contemplated hereby, and substance reasonably satisfactory to the Agentthere shall be no such action or proceeding pending which, if adversely determined, would materially and adversely affect, or injunction, order or decree in effect which materially and adversely affects, the Lendersbusiness, financial condition and their respective counseloperations of CDFG or any Subsidiary.
(evi) The Borrower NASD Approval shall have paid all fees been obtained.
(vii) All lessors under leases and expenses parties to agreements of CDFG and each Subsidiary, other than such leases and agreements which do not require consent for the consummation of the Agent and transactions contemplated by this Agreement, shall have consented in writing to the Attorney Costs incurred in connection with any consummation of the Loan Documents transactions contemplated hereby. At Closing, the Shareholders shall deliver to Buyer copies of all consents referred to in the preceding sentence.
(viii) The Shareholders shall have furnished Buyer with an opinion of counsel as to the status of the Shareholders, CDFG, and each Subsidiary and the transactions contemplated thereby, including, without limitation pursuant to by this Agreement substantially in the Fee Letter.form of Exhibit G.
(fix) To the extent Since December 31, 1999, except as set forth on Schedule 7.1, there shall not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operationsfinancial condition or operations of CDFG or any Subsidiary.
(x) All corporate proceedings in connection with the transactions contemplated by this Agreement, assetsand all documents and instruments incident thereto, properties, liabilities, profits, prospects shall be reasonably satisfactory in all material respects in substance and form to Buyer;
(xi) The Employment Agreements attached hereto as Exhibit C shall have been executed by Mich▇▇▇ ▇▇▇▇▇▇
(xii) [omitted] -52- 58
(xiii) The originals (to the extent reasonably available to the Shareholders) or financial position duplicates of all of the Loan Parties minute books, stock books and all other corporate and business records or documents of CDFG and each Subsidiary shall have been delivered or made available to Buyer;
(xiv) Either an affidavit that the Shareholders is not a foreign person (as determined provided in I.R.C. Sec. 1445(b)(2) or an affidavit of CDFG and each Subsidiary that complies with I.R.C. Sec. 1445(b)(3) shall have been properly executed.
(xv) All books and records of CDFG and Subsidiary shall have been delivered or made available to Buyer at a location specified by Buyer.
(xvi) The holders of a majority of the Agent CDFG Common Stock entitled to vote shall have approved this Agreement by written consent or at a duly noticed annual or special meeting of CDFG's shareholders.
(xvii) At Closing, the consolidated net working capital of CDFG and its Subsidiaries shall be at least the Majority Lenders Minimum Combined Net Working Capital; the net capital of First Colonial shall be at least the Minimum Required Focus Net Capital; and CDFG shall have at least $800,000 in their cash on hand, excluding any amounts contributed by Buyer hereunder and any capital attributable to NW Holdings, Inc. or First Level Securities, Inc.
(xviii) The Shareholders shall have provided the Financial Statements to Buyer.
(xix) The Shareholders shall have executed the Closing Escrow Agreement and shall have pledged the Closing Escrow Shares pursuant thereto.
(xx) CDFG shall have delivered the Certificate of Merger.
(xxi) The results of Buyer's due diligence of CDFG and Subsidiary shall be satisfactory to Buyer in its sole discretion.
(lxxii) The Lenders Shareholders shall be fully satisfied with have executed a Stockholders Agreement in the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations form of the business and properties of the Loan PartiesExhibit F hereto.
(mxxiii) Holders of no more than an aggregate of 400,000 shares of CDFG Common Stock shall have failed to grant their consent to the Merger.
(b) The Borrower Shareholders' obligation to close the Merger shall be subject to satisfaction of all of the conditions set forth in this subparagraph 7.1
(b) (unless expressly waived in writing by it at, or any time prior to, Closing):
(i) The representations and warranties of Buyer contained in this Agreement or in any certificate delivered pursuant hereto by or on behalf of Buyer shall have received the proceeds been true and complete when made and shall also be true and complete at and as of the Term Debt time of Closing.
(ii) Buyer shall have caused all covenants, agreements and conditions required by this Agreement to be performed or complied with by it prior to or at Closing to be so performed or complied with.
(iii) Buyer shall have delivered to the Shareholders a certificate, signed by its chairman, president or a vice president, and dated as of the Closing, certifying as to the fulfillment of the conditions sat forth in clauses (i) and (ii) of this subparagraph 7.1(b).
(iv) There shall not be in effect any injunction, order or decree of a court of competent jurisdiction that prohibits or delays consummation of the Merger and no action or proceeding alleging that the consummation of the Merger violates or will violate any federal or state law, rule or regulation shall have been instituted by or before any court or governmental body to restrain or prohibit the Shareholders from selling, or to recover damages from the Shareholders in respect of the Merger, unless Buyer elects to fully indemnify and defend the Shareholders in respect thereof.
(v) The NASD Approval shall have been obtained.
(vi) Buyer shall have furnished CDFG and the Agent shall have entered into Shareholders with an Intercreditor opinion of counsel as to the status of Buyer and the transactions contemplated by this Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.H.
(nvii) The Agent shall be satisfied All corporate proceedings in connection with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtainedall documents and instruments incident thereto, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in all material respects in substance and form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the AgentShareholders.
(vviii) The Agent Buyer shall have received results of searches or other furnished evidence reasonably satisfactory to the Agent (in each case dated as reasonable satisfaction of the Shareholders of a date reasonably satisfactory contribution of the sum of $500,000 to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory CDFG to the Agent are being tendered on the Closing Datebe used as set forth in Section 2.9 hereof.
(wix) Buyer shall have delivered the Merger Consideration to the Shareholders in such amounts as described in Paragraph 2.2 hereof, subject to the contribution of the Closing Escrow Shares pursuant to the Closing Escrow Agreement as described in Paragraph 2.8 hereof.
(x) The Agent board of directors of Buyer shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of approved this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAgreement.
Appears in 1 contract
Sources: Merger Agreement (Vfinance Com)
Conditions Precedent to Closing. Date This Agreement 3.1. Conditions Precedent to Closing Unless otherwise waived in writing by Party B, Party B's obligation to fulfill the payment of the First Tranche Price shall become effective at such time as be subject to the satisfaction of all the following conditions precedent having been satisfied in precedent:
1) The Company shall have made a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent resolution of the Majority Lenders to board of directors, approving the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement execution of the Transaction Documents, approving this Transaction and the execution of the new Articles of Association, and the other Loan Documents shareholders of the Company shall have waived their rights of first refusal to purchase the equity interest to be transferred in this Transaction (except for the transfer where the other shareholder is the transferor in this Transaction);
2) The Transaction Documents, including this Agreement, the Agreements on Equity Interest Transfer by Strategic Investors, the new Articles of Association, and the Abbreviated Agreement, resolutions and other documents as may be necessary to complete the Change of Registration, shall have been duly executed by each party thereto and each Loan delivered;
3) Party A's parent company (ChipMOS TECHNOLOGIES INC., "ChipMOS TECHNOLOGIES") shall have performed obtained approval from its board of directors for Party A's execution of the Transaction Documents and complied the approval of this Transaction, and shall have made the necessary announcements in accordance with the relevant applicable Laws;
4) The Company's Controlling Shareholders shall have obtained approval from its board of directors for the Company's execution of the relevant Transaction Documents and approve this Transaction;
5) The Company and all covenantsshareholders shall have obtained all necessary Approvals, agreements registrations, recordations, consents, permits, or exemptions from all relevant Government Authorities or third parties for the execution and conditions performance of the Transaction Documents and this Transaction (including the completion of the relevant Change of Registration in connection with this Transaction, the withholding and payment of income taxes, Tax filings, foreign exchange registrations, and any other government Approvals required for this Transaction);
6) The shareholders' meeting of the Company shall have appointed the candidates nominated/appointed by Party B and the Controlling Shareholders as directors and supervisors of the Company in accordance with the Articles of Association, the board of directors of the Company shall have been formally constituted as prescribed by the Articles of Association, and the relevant procedures for Change of Registration of the new directors and supervisors shall have completed;
7) The representations and warranties of Party A contained herein in Annex 4 to this Agreement shall continue to be fully true, complete and accurate. Party A shall have fulfilled all covenants indicated in the other Loan Transaction Documents which are required to be performed by it on or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on to the Closing Date, without any material violation of the provisions of the Transaction Documents;
8) To the best knowledge of Party A, no event, fact, condition, change, or other circumstance has occurred that has had, or would exist after giving effect reasonably be expected to have, a Material Adverse Effect with respect to the Loans performance of this Transaction or the Company's assets, financial structure, Indebtedness, technologies, profit prospects, reputation and normal operations, and that would cause this Agreement unable to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.performed;
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f9) To the extent not previously provided under the DIP Loan Agreementbest knowledge of Party A, the Agent there is no relevant applicable Law, judgment, arbitral award, ruling, or injunction from a court, arbitration institution, or relevant government regulatory authority that would restrict, prohibit or revoke this Transaction. Additionally, there is no pending or threatened litigation, arbitration, judgment, arbitral award, ruling or injunction that has had or would have a Material Adverse Effect on this Transaction and would cause this Agreement unable to be performed;
10) Party A shall have received evidenceissued to Party B a Closing Certificate (the content and format of which shall be as set forth in Annex 2 to this Agreement), confirming that all the conditions precedent set forth in form, scope, and substance, reasonably satisfactory Items 1) to 9) above have been satisfied. Party A shall have also provided Party B with the Agent, copies or scanned copies of all insurance coverage as required by documents set forth in the AgreementChecklist of Closing Deliverables in Annex 3 to this Agreement for verification.
3.2. Satisfaction of Conditions Precedent to Closing After all Closing conditions are satisfied or waived in writing by Party B, Party A shall provide Party B with the Closing Certificate (g) The Agent the content and the Lenders shall have had an opportunity, if they so choose, to examine the books format of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and be as set forth in Annex 2 to conduct a pre-closing appraisalthis Agreement), and the results copies or scanned copies of all documents set forth in the Checklist of Closing Deliverables in Annex 3 to this Agreement (excluding any such examination and audit and appraisal documents that are waived by Party B; the same shall have been satisfactory to apply below). If at any time Party A becomes aware of any fact or circumstance that may prevent the Agent in all respects.
satisfaction of any condition, it shall immediately notify Party B. Within five (h5) All proceedings taken in connection with Business Days after receiving the execution of this Agreement, all other Loan Documents Closing Certificate and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or set forth in the case Checklist of Closing Deliverables, Party B shall render a Loan written notice to Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them A confirming that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and Closing as defined set forth in the Plan of Reorganization shall Section 3.1 have been met (satisfied or deemed satisfied, or render a written notice to Party A detailing the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) sufficient and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but reasonable grounds for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of believing that any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to Closing as set forth in Section 3.1 has not been satisfied. If Party B fails to render any written notice within the making of such Loans forgoing five (5) Business Days indicating whether the conditions set forth in Section 3.1 have been satisfied or not, it shall be deemed that all the issuance of such Letters of Credit conditions precedent to Closing as set forth in Section 3.1 have been satisfied, with . The foregoing five (5) Business Days period shall commence from the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction day following Party B's receipt of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderClosing Certificate.
Appears in 1 contract
Sources: Equity Investment Agreement (Chipmos Technologies Inc)
Conditions Precedent to Closing. Date This The Lender has entered into this Bond Purchase Agreement in reliance upon the Authority’s representations and agreements herein and the performance by the Authority of its obligations hereunder, both as of the date hereof and as of the date of Closing. The Lender’s obligations under this Bond Purchase Agreement are and shall become effective at such time as be subject to the following conditions precedent having further conditions:
(a) at the time of Closing, the Documents and the Bond shall have been satisfied duly executed and delivered by the parties thereto and shall be in a manner satisfactory full force and effect and the Documents and the Bond shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Lender, and the Authority and the County shall have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of Sands ▇▇▇▇▇▇▇▇ PC, Richmond, Virginia, Bond Counsel, shall be necessary in connection with the transactions contemplated hereby and thereby;
(b) at the Closing, the Lender shall receive in addition to the Agent Bond and the Documents, the following:
(and in 1) (A) the case approving opinion, dated the date of any documentsClosing, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the AgentLender, of Bond Counsel (including an opinion that the Bond is “bank qualified”); and (B) the opinion of the County Attorney and of Authority Counsel, in each case the forms attached hereto as Exhibits B and C, with such changes in such opinion as Bond Counsel and the consent Lender shall approve;
(2) Such additional legal opinions, certificates, proceedings, instruments, and other documents, as the Lender or Bond Counsel may reasonably request to evidence (A) compliance by the Authority with legal requirements relating to the issuance of the Majority Lenders to Bond, or the extent required representations set forth in clauses the Tax and Nonarbitrage Certificate, (aB) through the truth and accuracy, as of the date of Closing, of all representations herein contained, and (wC) hereof the due performance or Section 13.2(a)(ii) hereof:
(a) This Agreement satisfaction by the Authority and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with County at or prior to such date of all covenants, agreements and conditions contained herein and in the other Loan Documents which are required then to be performed or complied with by such Loan Party before or on such Closing Date.and all conditions then to be satisfied as contemplated under this Bond Purchase Agreement; and
(b3) All representations Resolutions adopted by the Authority on October , 2022 (the "Resolution") and warranties made hereunder and in by the other Loan Documents shall be true and correct Board of Supervisors on October 11, 2022 (the "County Resolution"), each authorizing the appropriate actions for this financing as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit)approved by Bond Counsel.
(c) No Default From the time that the parties have entered into this Bond Purchase Agreement and the date of Closing there shall has not been:
(1) any material change in the financial condition of the County
(2) any event, court decision, proposed law or Event of Default shall exist on the Closing Daterule, decision, or would exist after giving effect to case effecting tax incidents of the Loans to be made on such date Bond.
(3) a national or international crisis materially affecting, in the Letters Lender’s opinion, the market price of Credit to be issued or the Credit Support to be provided on such dateBond.
(d) The Agent Evidence that the Lease, Ground Lease and Assignment Agreement have been recorded in the Lenders County land records. If the Authority shall be unable to satisfy the conditions to the Lender’s obligations contained in this Bond Purchase Agreement or if the Lender’s obligations shall be terminated for any reason permitted by this Bond Purchase Agreement, this Bond Purchase Agreement shall terminate, and neither the Authority, nor the Lender shall have received such opinions of counsel (concerningany further obligations hereunder, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
except that (i) The Agent shall have received a copy the representations and warranties of the certificate or articles of incorporation or other constitutive documentsAuthority and the County set forth in Section 2 and Section 3, in each case amended to daterespectively, of each herein (as of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (Amade) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain will continue in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision obligations of such Lender the County to execute pay the expenses and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent costs set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender6 shall continue.
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as The obligations of purchaser hereunder are subject to the following conditions precedent having been satisfied prior to or on the Closing Date (any one of which may be waived in a manner satisfactory whole or in part by purchaser at or prior to the Agent (Closing) and in the case event any of any documentsthe conditions are not complied with, agreements or other deliveries, such documents, agreements purchaser may terminate this Contract of Sale by notifying seller and deliveries thereafter this Contract of Sale shall be in form null and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofvoid:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party Seller shall have performed all of its obligations, covenants and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.under this Contract of Sale;
(b) All of seller's representations and warranties made hereunder and in the other Loan Documents this Contract shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).Date;
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto Leases shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (Cthe tenants thereunder shall be current in their payment of all rents, additional rents and other charges due thereunder ( it being understood an agreed that seller shall be prohibited from applying any security deposit(s) that such Loan Party's certificate or articles currently held under the Leases for the purpose of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovesatisfying this condition precedent), and (D) as to the incumbency and specimen signature tenants shall not otherwise be in default under any of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt the Leases (including, without limitation, other than the Term Debt) obligation of Kollmorgen [or its successor]to occupy the space it is currently leasing at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ and other agreements of the Loan Parties and their Subsidiaries Sprint's failure to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents obtain necessary sign offs and approvals (including, without limitation, consents for open permits with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effecttheir equipment); all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.and
(qd) The terms of all sourcing arrangements among the Loan Parties and their suppliers Seller shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute obtain and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as purchaser prior to the satisfaction expiration of the Feasibility Period a tenant estoppel certificate from all tenants at the Premises in the forms annexed hereto as Schedules D-1 and D-2 (it being understood and agreed that any condition precedent set forth in this Section 10.1, and (iii) all documents sent changes or modifications to such Lender for approvaltenant estoppel form must be approved, consent or satisfaction were acceptable in writing, by purchaser prior to such Lenderthe expiration of the Feasibility Period). Seller shall deliver the form tenant estoppel certificate to each of the tenants immediately after the Effective Date.
Appears in 1 contract
Conditions Precedent to Closing. Date This The obligations of the Parties under this Agreement shall become effective be and are subject to fulfillment, prior to or at such time as the Closing, of each of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This Agreement Each of the representations and warranties of the other Loan Documents have been executed Parties contained herein shall be true and correct at the time of the Closing Date as if such representations and warranties were made at such time except for changes permitted or contemplated by each party thereto and each Loan Party this Agreement;
(b) The Parties shall have performed and or complied with all covenantsagreements, agreements terms and conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by such Loan Party before them prior to or on such Closing Date.at the time of the Closing;
(bc) All representations The Board of Directors of the Company shall unanimously approve and warranties made hereunder deliver to ▇▇▇▇▇▇▇▇ & Associates, PA (the "Escrow Agent") in escrow, resolutions with respect to: (i) approving the Share Exchange and in the other Loan Documents shall actions set forth herein; (ii) increasing or directing the size of the Company’s Board of Directors (the “Board”) to be true a number of members as determined by OELC; (iii) electing individuals selected by OELC to the Board, (iv) the current members of the Board tendering their resignations as officers and correct directors of ALAS to be effective as of the later of the Closing Date as if made on such date or within 10 days of filing Form 14-F; (both immediately prior to, and after giving effect to, such extension of credit).
(civ) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect an amendment to the Loans Company’s Certificate of Incorporation changing its name to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.“Excellux, Inc.”;
(d) The Agent Company shall prepare and the Lenders shall have received such opinions of counsel (concerningdeliver to OELC for review, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties a Form 8-K filing as the Agent or any Lender shall request, each such opinion required to be in a form, scope, filed with the Securities and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken Exchange Commission in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto ;
(e) The Company shall take such actions as are required such that at Closing there shall be satisfactory in form, scope, and substance a total of 45,000,000 shares of Common Stock issued after giving effect to the Agentacquisition of the OELCs Shareholders and their designees of 33,000,000 shares of the Common Stock as set forth on OELC Disclosure Schedule 1.1.
(f) The Company shall prepare and deliver to OELC for review, a Schedule 14-F filing to be filed with the Commission on the Closing date;
(g) The Company shall deliver letters of resignation of its current officers and directors to be effective ten (10) days following the filing of the Schedule 14-F;
(h) The Company shall have delivered deliver to the Escrow Agent a total of 33,000,000 shares of Common Stock of the Company for delivery to the OELCs shareholders and their designees;
(i) The Agent Company shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended use its reasonable best efforts to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true prepare and complete copy of such Loan Party's By-laws as in effect on the date of such certificate documents necessary to be filed with local, state and at all times since federal authorities to consummate the transactions contemplated hereby, including a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (Schedule 14C Information Statement or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) 14A Proxy Statement as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating amendment to the conduct and operations Articles of Amendment to Certificate of Incorporation (the business and properties “Articles of the Loan Parties.
(mAmendment”) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with as required to effectuate the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, clear comments with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender SEC as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.same as may be required; and
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as 11.1 Lender will not be obligated to make any loans or advances hereunder unless the following conditions precedent having have been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofas determined by Lender:
(a) This Borrower's representations and warranties contained in this Agreement and the other Loan Documents have been executed by each party thereto in any related documents and each Loan Party agreements shall be correct and complete; Borrower shall have performed and complied with all covenants, agreements agreements, and conditions contained herein and in the other Loan Documents any related documents and agreements which are required to be have been performed or complied with by such Loan Party before with; and there shall exist no Default or on such Closing DateEvent of Default.
(b) All representations Borrower shall have delivered, or cause to be delivered, to Lender such other documents, instruments and warranties made hereunder agreements as Lender shall request in connection herewith, duly executed by all parties thereto other than Lender, and in the other Loan Documents shall be true form and correct as of the Closing Date as if made on such date (both immediately prior to, substance satisfactory to Lender and after giving effect to, such extension of credit).its counsel;
(c) No Default or Event of Default ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as individual guarantors, shall exist on the Closing Dateeach have executed and delivered, or would exist after giving caused to be executed and delivered, Continuing Guaranties, in form and substance acceptable to Lender, and all other instruments, documents, agreements and waivers as in the opinion of Lender may be necessary to give effect to such Continuing Guaranties and the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.transactions contemplated thereby;
(d) The Agent and the Lenders Lender shall have received such opinions of from counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization for Borrower and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such guarantors an opinion to be letter in a form, scope, form and substance reasonably satisfactory acceptable to the Agent, the Lenders, and their respective counsel.Lender;
(e) Borrower shall have executed, and Lender shall have filed, all financing statements deemed necessary or desirable by Lender to perfect Lender's security interest in the Collateral, and Lender shall have received assurances satisfactory to it that such security interests are duly perfected, first priority security interests;
(f) Borrower shall have delivered to Lender evidence satisfactory to Lender that the Collateral has been insured in such amounts as may be acceptable to Lender and in compliance with the provisions of the Agreement and Lender shall be named as lender loss payee or as additional insured on endorsements in form and substance satisfactory to Lender;
(g) Subordination agreements, no-offset agreements and intercreditor agreements, in form and substance satisfactory to Lender, shall have been executed and delivered by Seller (as defined below) and such other parties as Lender deems necessary, including without limitation the subordination by WAWP-EAP Automotive Products, Inc. ("WAWP-EAP") and Echlin, Inc. of the $1,500,000 note executed by Borrowers in favor of WAWP-EAP in connection with Borrower's purchase of assets pursuant to the Purchase Agreement, the terms of which shall be acceptable to Lender.
(h) Orderly liquidation in-place value appraisals of Borrower's machinery and equipment shall have been delivered to Lender by an appraiser or appraisers satisfactory to Lender.
(i) The Purchase Agreement ("Purchase Agreement") by and among WAWP-EAP ("Seller") and Borrower shall have been executed and delivered by all parties thereto, in form and substance and with detailed schedules of assets and liabilities acceptable to Lender, the purchase and sale transaction contemplated thereby shall have been completed and the assets (the "Purchased Assets") acquired by Borrower pursuant thereto shall have been transferred to Borrower free and clear of all liens, claims and encumbrances and rights of others, except those of Lender and those expressly approved by Lender. The representations, warranties, indemnifications and undertakings in the Purchase Agreement shall also be assigned for the benefit of Lender.
(j) All applicable bulk transfer or similar laws shall have been complied with by Seller and Borrower prior to the transfer to Borrower of the Purchased Assets, or Lender shall have received an indemnification agreement, in form and substance and from a person satisfactory to Lender, in its sole and absolute discretion, indemnifying Lender for any loss or expense incurred as a result of any failure to comply with such laws;
(k) No materially advantageous agreement now in effect between Borrower and/or Seller and any other person or entity shall have been terminated, modified or declared to be in default;
(l) All consents necessary to permit the acquisition of the Purchased Assets by Borrower in accordance with applicable law and the provisions of any agreement binding on Borrower or Seller and to permit the secured financing transaction contemplated by this Agreement shall have been obtained.
(m) Lender shall have received a description of all employees pension benefit plans (if any) of Borrower and Seller which are now in existence and confirmation that such plans have either been assumed by Borrower or Seller, terminated or replaced in a manner satisfactory to Lender, and to the extent such plans are to be assumed, that such plans are funded at a level satisfactory to Lender;
(n) Lender shall have received evidence satisfactory to it that no broker's fee, finder's fee or similar fee shall be payable by Borrower or by any other Person in connection with the Purchase Agreement or the Agreement or Lender shall have consented to the terms and payment of any such fee;
(o) Lender shall have received copies of all labor contracts to which Borrower is a party and all labor contracts necessary to the continuation of the business operations of Borrower shall be in effect on the closing;
(p) On the closing, the present fair saleable value of the assets of Borrower shall be greater than the fair value of the total liabilities of Borrower, including, without limitation, contingent liabilities, and Lender shall be satisfied that the present fair saleable value of the assets of Borrower will continue thereafter to be greater than the total fair value of the liabilities of Borrower, including, without limitation, contingent liabilities, and Lender shall have received a certificate from Borrower to that effect.
(q) On the closing, all of the assets supporting the loans shall be sufficient in value, as determined by Lender, to provide Borrower with (i) sufficient funds to purchase the Purchased Assets and (ii) working capital to enable Borrower to profitably operate its business, and Lender shall have received a certificate from Borrower to that effect.
(r) Lender shall have received an opening balance sheet of Borrower, dated the closing, in form and substance satisfactory to Lender, prepared by an accounting firm or officer of Borrower satisfactory to Lender, which balance sheet shall reflect the purchase of the Purchased Assets by Borrower and the initial loan.
(s) There shall have been contributed to the equity of Borrower a cash amount equal to at least $100,000.00;
(t) With respect to the asset sale under the Purchase Agreement: Borrower shall submit to Lender cash flow statements and pro forma balance sheets with adjusting entries (a) showing that the proposed financing will provide sufficient funds for the Borrower's projected needs; (b) showing that the Borrower:
(i) will have a minimum tangible net worth in an amount that is acceptable to Lender and will otherwise be solvent immediately after initial funding; (ii) will have reasonably sufficient capital to engage in its business following the initial funding; and (iii) will not incur debts beyond its ability to pay such debts as they mature; (c) in form and substance satisfactory to Lender; (d) certified by an officer of Borrower; and (e) based upon assumptions acceptable to Lender.
(u) Borrower must have a minimum of $1,000,000.00 in excess borrowing availability at the closing, and Lender shall have received a certificate from Borrower to that effect.
(v) Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred Lender, including those specified in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.Section 3 hereof;
(w) The Agent Lender shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction verifications of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued continued trade credit on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were terms acceptable to such Lender.; and
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents ESL shall have been executed by each party thereto received an opinion addressed to Equity Services, Ltd. and each Loan Party shall have performed and complied with all covenantssubscriber to the Private Placement, agreements and conditions contained herein and from Vial, Hamilton, Koch & ▇nox, ▇.L.P., substantially in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Dateform attached hereto as Exhibit "D".
(b) All representations and warranties made hereunder and in ESL shall have received a fully executed Placement Agent's Option Certificate from the other Loan Documents shall be true and correct as Company for the options earned upon the closing of each Phase of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension Private Placement before the closing of credit)each Phase in which they are earned.
(c) No Default or Event of Default ESL shall exist on the Closing Date, or would exist after giving effect have received a fully executed Registration Rights Agreement with respect to the Loans to be made on such date or Placement Agent's Shares and the Letters ESL Option Shares from the Company for the Placement Agent's Shares and the ESL Option Shares earned upon the closing of Credit to be issued or each Phase of the Credit Support to be provided on such datePrivate Placement.
(d) The Agent and the Lenders ESL shall have received such opinions of counsel (concerning, among other things, entry a certified copy of the order confirming resolution of the Plan Board of Reorganization and proper notice having been given) for Directors of the Loan Parties as Company authorizing the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counseltransactions contemplated herein.
(e) The Borrower Company shall have paid all fees and expenses filed with the Office of the Agent and Secretary of State of Utah a Certificate of Designation acceptable to ESL, substantially in the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letterform attached hereto as Exhibit "C".
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent The Company shall have received evidence, amended its Bylaws in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage such a manner as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied Bylaws consistent with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents transactions contemplated herein, a copy of which will have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in provided to ESL prior to the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated therebyPhase I Closing.
(qg) The terms Prior to the closing of all sourcing arrangements among the Loan Parties each of Phase(s) I and their suppliers II, ESL shall have been fully disclosed to received a certificate representing the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any Placement Agent's Shares earned for each such supply arrangementsPhase.
(rh) There Prior to the closing of each of Phase(s) I and II ESL shall have been delivered received a fully executed subscription agreement from each subscriber to the Agent such additional instruments Phase I and documents as the Agent or its counsel reasonably may require or requestPhase II, respectively.
(si) The Bankruptcy Court Prior to the closing of each Phase of the Private Placement, ESL shall have entered an order confirming had the Borrower's Plan of Reorganization, which shall have been certified by opportunity to review the Clerk business and financial milestones of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation Company set forth on Exhibit "E" and to ascertain the "Effective Date" under and as defined Company's compliance therewith (in ESL's sole judgment). In the Plan of Reorganization shall have been met (or event that ESL determines that the waiver thereof shall have been consented Company is not in compliance with said milestones, ESL will be released from its obligation to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date complete subsequent Phases of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation DatePrivate Placement.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Conditions Precedent to Closing. SECTION 5.1. Conditions to Each Party's Obligations. The obligations of a party hereunder required to be performed on the Closing Date This Agreement shall become effective be subject to the satisfaction or waiver, at such time as or prior to the Closing, of the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofconditions:
(a) This The representations and warranties of the other party contained in this Agreement and of the other Loan Documents party's parent contained in the Registration Rights Agreement (i) shall have been executed by each party thereto true and each Loan Party correct when made and (ii) shall have performed and complied with all covenants, agreements and conditions contained herein and be (A) in the case of representations and warranties that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other Loan Documents which are required to be performed or complied cases, true and correct in all material respects, in the case of clauses (A) and (B), as of the Closing Date with by such Loan Party before or the same force and effect as though made on such and as of the Closing Date.
(b) All representations The other party shall have performed in all material respects all of its obligations, agreements and warranties made hereunder covenants contained in this Agreement and the other party's parent shall have performed in all material respects all of its obligations, agreements and covenants contained in the other Loan Documents shall Registration Rights Agreement to be true performed and correct as of complied with at or prior to the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit)Date.
(c) No Default or Event The parent of Default the other party shall exist on have entered into the Closing Date, or would exist after giving effect to the Loans to Registration Rights Agreement and such agreements shall be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such datein full force and effect.
(d) The Agent and the Lenders other party shall have received delivered to such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; party a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect executed by it or on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed behalf by a Responsible Officer of the Borrowerduly authorized representative, dated the Closing Date, to such effect. Execution and delivery the effect that each of the conditions specified in paragraphs (a) through (c) of this Section 5.1 has been satisfied.
(e) Any applicable waiting period under the HSR Act with respect to the Agent by a Lender consummation of a counterpart the Transactions shall have expired or been terminated.
(f) No provision of this Agreement any Applicable Law, or any injunction, order or decree of any Governmental Entity shall be deemed confirmation by such Lender that in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions.
(ig) All necessary orders and permits approving the Transactions from all conditions precedent in this Section 10.1 applicable state regulatory authorities shall have been fulfilled to the satisfaction of such Lender, obtained.
(iih) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderThe Stockholder Approval shall have been obtained.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement Neither Agent nor any Lender shall become effective at such time as be obligated to make the initial Loans, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedent having have been satisfied to Agent’s complete satisfaction or waived in a manner satisfactory to writing by Agent and the Lenders:
(a) Agent (and in shall have received each of the case of any documents, agreements or other deliveriesagreements, such documentsinstruments, agreements reports, certificates and deliveries shall be statements set forth on the Schedule of Documents, each duly executed by the appropriate parties and in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.;
(b) All payment by Borrower of the Agent’s Fees and all other fees, costs, and expenses of closing (including reasonable fees of counsel to Agent invoiced as of the Closing Date);
(c) no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and that, in Agent's sole judgment, would make it inadvisable to consummate the transactions contemplated by this Agreement or any other Loan Document;
(d) Agent and each Lender shall have completed their business and legal due diligence, including a Collateral audit and field examination, with results satisfactory to Agent;
(e) all of the representations and warranties made hereunder of Borrower under this Agreement and in the other Loan Documents shall be true and correct in all material respects at such date, except to the extent any such representations and warranties relate to an earlier date in which case such representations and warranties shall remain true and correct in all material respects as of such earlier date (provided that the foregoing materiality qualifications shall not apply to any representations and warranties that already are qualified or modified by materiality in the text thereof), and Agent shall have received a certificate, dated as of the Closing Date as if made on such date (both immediately prior toDate, and after giving to that effect to, such extension of credit).signed by an Authorized Signatory;
(cf) No Default or Event of Default Agent shall exist on determine that no Material Adverse Effect shall have occurred since the most recent audited Financial Statements delivered to Agent prior to the Closing Date;
(g) Agent shall have received opinions of counsel of (i) Winston & ▇▇▇▇▇▇ LLP, special counsel to Borrower and (ii) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special Maryland counsel to Borrower, each in form and substance satisfactory to Agent;
(h) Agent shall have received and approved Borrower’s Credit Policy, which shall be consistent with those previously represented to Agent and shall be acceptable to Agent in its sole discretion;
(i) Agent shall have received evidence satisfactory to Agent either that any Person having a Lien (except for Permitted Liens) with respect to the assets of Borrower shall have released such Lien or would exist after giving effect to that such Lien shall be automatically terminated upon the funding of the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.Closing Date; and
(dj) The Agent all other documents and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken legal matters in connection with the execution transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the terms of this Agreement, all other Loan Documents and all documents and papers relating thereto Section 2.1 shall be satisfactory in form, scopecontrol, and substance to the Agent.
(i) The Agent Borrower shall not have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing any rights under this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to until each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation Section 2.1 has been complied with to Agent’s satisfaction or specifically waived in a writing by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderAgent.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Conditions Precedent to Closing. Date This The Note Purchaser will have no obligation to consummate the transactions contemplated by this Agreement unless:
(a) each of the Basic Documents shall be in full force and effect and all consents, waivers and approvals necessary for the consummation of the transactions contemplated by the Basic Documents shall have been obtained and shall be in full force and effect;
(b) all conditions to the issuance of the Notes under the Indenture and under SECTION 2.1(b) of the Sale and Servicing Agreement shall become effective at such time as the following conditions precedent having have been satisfied and all conditions to each Advance, including the initial Advance, set forth under SECTION 6.02 hereof have been satisfied;
(c) the Note Purchaser shall have received a duly executed, authorized and authenticated Note registered in its name and stating that the principal amount thereof shall not exceed the Maximum Invested Amount;
(d) the Issuer shall have paid all fees required to be paid by it on or prior to the Restatement Effective Date, including all fees required under Section 8.05(a) hereof;
(e) the Notes purchased by the Note Purchaser hereunder shall be entitled to the benefit of the security provided in the Indenture and shall constitute the legal, valid and binding agreement of the Issuer, enforceable against the Issuer in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by equitable limitations on the availability of specific remedies, regardless of whether such enforceability is considered in a manner satisfactory proceeding in equity or at law;
(f) no Material Adverse Change shall have occurred with respect to CPS or the Issuer since December 31, 2005;
(g) the Note Purchaser shall have received:
(i) a duly executed and delivered original counterpart of each Basic Document (other than any Basic Document that contemplates delivery on a date after the Restatement Effective Date), each such document being in full force and effect;
(ii) certified copies of charter documents and each amendment thereto, and resolutions of the Board of Directors or other governing authority of each of the Issuer and the Servicer authorizing or ratifying the execution, delivery and performance of all Basic Documents to which it is a party, certified by the Secretary or an Assistant Secretary of each of the Issuer and the Servicer as of the Restatement Effective Date, which certificate shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate;
(iii) a certificate of the Secretary or an Assistant Secretary of the Issuer and the Servicer, as applicable, certifying the names and the signatures of its officer or officers authorized to sign all transaction documents to which it is a party;
(iv) a certificate of a senior officer of CPS to the Agent (effect that the representations and warranties of the Seller and the Servicer in this Agreement and the case other Basic Documents to which either of any documentsthem is a party are true and correct as of the Restatement Effective Date, agreements or other deliveries, such documents, and that the Seller and the Servicer have complied in all material respects with all agreements and deliveries shall satisfied all conditions on their part to be performed or satisfied at or prior to the Restatement Effective Date;
(v) a certificate of a senior officer of the Issuer to the effect that the representations and warranties of the Issuer and the Purchaser in this Agreement and the other Basic Documents to which either of them is a party are true and correct as of the Restatement Effective Date and that the Issuer and the Purchaser have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Restatement Effective Date;
(vi) legal opinions (including opinions relating to true sale, non-consolidation, UCC, enforceability and corporate matters) in form and substance satisfactory to the Agent)Note Purchaser, in each case with the consent which legal opinions may be "bring-down" letters of the Majority Lenders legal opinions delivered by counsel to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:Issuer, the Purchaser, the Servicer and the Seller on the Original Closing Date;
(avii) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably evidence satisfactory to the Agent, the Lenders, Note Purchaser of completion of all necessary UCC filings and their respective counsel.search reports;
(eviii) The Borrower shall have paid all payment of Note Purchaser's reasonable out-of-pocket fees and expenses of the Agent and the Attorney Costs incurred in connection accordance with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.SECTION 3.01(c) hereof;
(fix) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, copies of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation certificates or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by evidence from the Secretary of State or other appropriate official authority of the state or other jurisdiction States of its organization Delaware and dated as of a recent date; a certificate California, evidencing the good standing of the Secretary Issuer and the Servicer in the States of Delaware and California, in each of the Loan Partiescase, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date no earlier than 15 days prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicableRestatement Effective Date; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.and
(jx) The Agent shall have received certificates of good standingsuch other documents, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization opinions and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents information as the Agent or its counsel Note Purchaser may reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Note Purchase Agreement (Consumer Portfolio Services Inc)
Conditions Precedent to Closing. Date The obligation of the Lenders to make Advances hereunder comprising the initial Borrowing were subject to the conditions precedent in Section 3.01 of the Existing Credit Agreement, which have been satisfied. This Agreement shall become effective at such time as on the following conditions precedent having been satisfied in a manner satisfactory to Closing Date; provided that the Facility Agent (and in shall have received the case of any documentsfollowing, agreements or other deliveries, such documents, agreements and deliveries shall be each in form and substance satisfactory to the Facility Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement this Agreement, duly executed and delivered by the other Loan Documents have been executed by each party thereto parties hereto, and each Loan Party which shall have performed be in full force and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.effect;
(b) All true and complete copies of the Constituent Documents of the Borrower and the Investment Manager as in effect on the Closing Date;
(c) true and complete copies certified by a Responsible Officer of the Borrower or the Investment Manager, as applicable, of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than any current transaction reports on Form 8-K or other disclosure documents required to be filed or furnished by the Investment Manager with the SEC pursuant to Section 13 or 15(d) of the Exchange Act or otherwise), if any, required in connection with the transactions contemplated by this Agreement, the other Facility Documents and the Retention Letter;
(d) a certificate of a Responsible Officer of the Borrower and the Investment Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the transactions contemplated hereby, (iii) that its representations and warranties made hereunder and set forth in this Agreement, the other Loan Facility Documents and the Retention Letter are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of the Closing Date as if made on such date earlier date), (both immediately prior to, and after giving effect to, such extension of credit).
(civ) No no Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent has occurred and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) belowcontinuing, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (Dv) as to the incumbency and specimen signature of (x) certain of its Responsible Officers that are authorized to execute this Agreement, the other Facility Documents and any other documents related thereto and (y) each of such Loan Party's officers executing its Responsible Officers that will execute this Agreement, any other Facility Documents, the Retention Letter and any other documents related thereto and (vi) that each of the Facility Documents not being amended in connection with this Agreement or any other Loan Document delivered shall remain unchanged and in connection herewith or therewith, as applicable; a certificate full force and effect following the effectiveness of another of such Loan Party's officers as to incumbency and signature of its Secretary.this Agreement;
(je) The Agent shall have received certificates of good standing, existence or its equivalent with respect legal opinions (addressed to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction Secured Parties and DBRS) of incorporation or organization (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel, and Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ LLP, Delaware counsel, in each other jurisdiction listed on Schedule 10.1(j).case to the Borrower and the Investment Manager and (ii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;
(kf) There shall be no material adverse change lien searches in all jurisdictions that the business, operations, assets, properties, liabilities, profits, prospects Facility Agent deems necessary or financial position desirable in order to ensure the existing perfection of the Loan Parties as determined by security interests granted under the Agent and the Majority Lenders in their sole discretion.Existing Credit Agreement;
(lg) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt a refreshed Retention Letter substantially in the form of Exhibit E hereto.F;
(nh) The Agent a Rating Confirmation from DBRS shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements have been obtained in respect of the Loan Parties and their Subsidiaries amendments contemplated by this Agreement;
(i) evidence of payment by or on behalf of the Borrower of Closing Date Expenses invoiced on or prior to remain outstanding after the Closing Date (includingin the case of payment by the Borrower, without limitationout of a contribution made or deemed made by TPG Specialty Lending, any subordination or other intercreditor provisions contained therein or applicable theretoInc.).;
(oj) The Agent shall be reasonably satisfied with a secretary’s certificate from the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of ReorganizationCollateral Agent, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that include (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, extracts from its bylaws and (ii) the decision incumbency and specimen signature of such Lender each of its Responsible Officers authorized to execute this Agreement;
(k) the issuance of a Note to Versailles Assets LLC, replacing its Note issued as of the ARCA Closing Date; and
(l) such other opinions, instruments, certificates and deliver to documents from the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on Borrower as the Agent Agents or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lendershall have reasonably requested.
Appears in 1 contract
Sources: Credit and Security Agreement (TPG Specialty Lending, Inc.)
Conditions Precedent to Closing. Date This Agreement The Commitments of the Lenders shall not become effective at such time as unless and until each of the following conditions precedent having has been satisfied in a manner satisfactory to by the Company:
(a) the Administrative Agent (and in shall have received the case of any documentsfollowing, agreements or other deliveries, such documents, agreements and deliveries shall be each in form and substance satisfactory to the Agent), in Administrative Agent and each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofLenders:
(ai) This Agreement and the other Loan Documents have been executed Promissory notes, if requested by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required any Lender pursuant to be performed or complied with by such Loan Party before or on such Closing DateSection 2.06.
(bii) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as Certified copies of the Closing Date as if made on such date (both immediately prior toresolutions of the Board of Directors of the Company approving this Agreement, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by documents evidencing other necessary corporate action and governmental approvals, including the FPSC Order, with respect to this Agreement.
(giii) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a A certificate of the Secretary of each or an Assistant Secretary of the Loan PartiesCompany, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy as of such Loan Party's By-laws as in effect on the date of such certificate hereof, certifying the names and at all times since a date prior to the date true signatures of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy officers of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of Company authorized to sign this Agreement and the other Loan Documents documents to which it is be delivered hereunder.
(iv) A certificate of a party Responsible Officer of the Company, dated as of the date hereof, certifying (i) the accuracy of the representations and warranties contained herein and (ii) that such resolution no event has not been modified, rescinded or amended occurred and is in full force continuing which constitutes a Default or an Event of Default.
(v) Certified copies of all required governmental approvals and effect, authorizations.
(Cvi) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date Certified copy of the last amendment thereto shown on restated charter and bylaws of the certificate of good standing furnished hereinaboveCompany.
(vii) Evidence satisfactory to the Administrative Agent that (i) the Existing Facility shall have been terminated and all amounts outstanding thereunder shall have been paid in full, and (Dii) the commitments under the $1,130,000,000 Credit Agreement, dated as of May 3, 2006, among Progress Energy, Inc. and the lenders and administrative agent parties thereto shall have been reduced to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretaryno more than $500,000,000.
(jviii) The Favorable opinions of counsel for the Company, substantially in the forms of Exhibit D-1 and Exhibit D-2 hereto and as to such other matters as any Lender through the Administrative Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)may reasonably request.
(kix) There shall be no material adverse change in the businessA favorable opinion of King & Spalding LLP, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent counsel for the Term Debt Administrative Agent, substantially in the form of Exhibit E hereto.
(nx) The Agent Such information as shall be satisfied sufficient for the Administrative Agent and each Lender to verify the identity of the Company for purposes of complying with the terms and conditions USA Patriot Act (Title III of all material Debt Pub. L. 107-56 (includingsigned into law October 26, without limitation2001)), the Term Debtas contemplated by Section 8.17 hereof.
(b) and other agreements of the Loan Parties and their Subsidiaries Any fees required to remain outstanding after be paid on or before the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto)shall have been paid by the Company.
(oc) The Unless waived by the Administrative Agent, the Company shall have paid all reasonable out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent shall be reasonably satisfied in connection with the all intercompany arrangements relating to the acquisition, ownership preparation and transfer negotiation of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain documents to be delivered in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed connection herewith to the Agent extent invoiced prior to or on the Closing Date, plus such additional amounts 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 Company and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Administrative Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoingprovisions of Section 7.04, the capital structure for purposes of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of determining compliance with the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfiedspecified in this Section 3.01, with the same effect as delivery to the Agent and the Lenders of a certificate each Lender that has signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation 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 that (i) all conditions precedent in this Section 10.1 have been fulfilled prior to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent to Closing. Date This Lenders shall not be required to execute and deliver this Agreement shall become effective at such time as until the date (“Closing Date”) that each of the following conditions precedent having has been satisfied satisfied:
(a) Notes shall have been executed by Borrowers and delivered to each Lender that requests issuance of a Note. Each other Loan Document shall have been duly executed and delivered to Agent by each of the signatories thereto, and each Obligor shall be in a manner compliance with all terms thereof.
(b) Agent shall have received acknowledgments of all filings, registrations or recordations necessary to perfect and render enforceable its Liens in the Collateral, as well as UCC and PPSA Lien searches and other evidence satisfactory to Agent that such Liens are the only Liens upon the Collateral, except Permitted Liens.
(c) Agent shall have received duly executed agreements establishing each Dominion Account and related lockbox, if any, in form and substance, and with financial institutions, satisfactory to Agent.
(d) Agent shall have received duly executed Deposit Account Control Agreements, in form and in the case of any documentssubstance, agreements or other deliveriesand with financial institutions, such documentssatisfactory to Agent.
(e) Agent shall have received certificates, agreements and deliveries shall be in form and substance satisfactory to the Agent)it, in each case with the consent from a knowledgeable Senior Officer of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenantscertifying that, agreements and conditions contained herein and in after giving effect to the other Loan Documents which are required to be performed or complied with by initial transactions hereunder, (i) such Loan Party before or on such Closing Date.
is Solvent; (bii) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No no Default or Event of Default shall exist on exists; (iii) the Closing Date, or would exist after giving effect to the Loans representations and warranties set forth in Section 9 are true and correct; and (iv) such Loan Party has complied with all agreements and conditions to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for satisfied by it under the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee LetterDocuments.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidencea certificate of a duly authorized officer of each Obligor, in form, scopecertifying (i) that attached copies of such Obligor’s Organic Documents are true and complete, and substancein full force and effect, reasonably satisfactory without amendment except as shown, (ii) that an attached copy of resolutions authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, and (iii) to the Agenttitle, name and signature of all insurance coverage as required each Person authorized to sign the Loan Documents. Agent may conclusively rely on this certificate until it is otherwise notified by an authorized officer of the Agreementapplicable Obligor in writing.
(g) The Agent and the Lenders shall have had an opportunityreceived, if they so choosein form and substance satisfactory to Agent, (i) a pro forma balance sheet of Parent, dated as of March 31, 2006, and reflecting no material adverse changes from the pro forma balance sheet most recently delivered to Agent by Parent, (ii) financial projections of Parent evidencing, to examine Agent’s satisfaction, Borrowers’ ability to comply with the books of account and other records and files of the Loan Parties and to make copies thereofcovenants set forth in Section 10.3 hereof, and to conduct (iii) interim financial statements of Parent as of a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory date not more than thirty (30) days prior to the Agent in all respectsclosing date.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.[RESERVED]
(i) The Agent shall have received a copy copies of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, charter documents of each of the Loan PartiesObligor, certified as appropriate by the Secretary of a recent date State or another official of such Obligor’s jurisdiction of organization. Agent shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of the state or other such Obligor’s jurisdiction of its organization and dated as each jurisdiction where such Obligor’s conduct of a recent date; a certificate business or ownership of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its SecretaryProperty necessitates qualification.
(j) The Agent shall have received summaries of policies and certificates of good standingliability, existence or its equivalent property and business interruption insurance for the insurance policies carried by Loan Parties, together with respect to each Loan Party certified a loss payable endorsement naming Agent as of loss payee as their interest may appear, and a recent date by the appropriate Governmental Authorities list of the state or other jurisdiction names and mailing addresses of incorporation or organization each insurer under, and broker of, such policies, all in each other jurisdiction listed on Schedule 10.1(j)compliance with the Loan Documents.
(k) There Agent shall be no have completed its business, financial and legal due diligence of Obligors, with results satisfactory to Agent. No material adverse change in the businessfinancial condition of any Obligor or in the quality, operationsquantity or value of any Collateral shall have occurred since March 31, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion2006.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower Borrowers shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of paid all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of paid to Agent and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered Lenders on the Closing Date.
(wm) The Agent shall have received a Borrowing Base Certificate prepared as of March 31, 2006. Upon giving effect to the payment by Borrowers of all documents fees and instrumentsexpenses incurred in connection herewith as well as any payables stretched beyond their customary payment practices, including Uniform Commercial Code financing statementsAvailability shall be at least $40,000,000.
(n) Agent shall have received a written opinion of M▇▇▇▇▇, required by law or ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, in form and substance satisfactory to Agent.
(o) Agent shall have received, in form and substance reasonably requested satisfactory to Agent in good faith, true, correct and complete copy of the Senior Secured Note Indenture, duly authorized, executed and delivered by the parties thereto;
(p) Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filedreceived, registeredin form and substance reasonably satisfactory to Agent in good faith, published or recorded to the satisfaction Intercreditor Agreement, duly authorized, executed and delivered by each of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderparties thereto.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement The following shall become effective at such time as the following be conditions precedent having been satisfied in a manner satisfactory to Purchaser's obligation to consummate the purchase and sale transaction contemplated herein ("Purchaser's Conditions Precedent"):
(i) Purchaser shall have received and approved, at or prior to the Agent (and Closing, executed estoppel certificates substantially in the case form provided by Purchaser’s lender from all of any documentsthe Major Tenants (hereinafter defined) and from Tenants comprising 85% of the economic rent.
(ii) Purchaser shall have received and approved, agreements at or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory prior to the Agent)Closing, in each case with the consent of the Majority Lenders to the extent required in clauses executed subordination, non-disturbance and attornment agreements (a“SNDAs”) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and substantially in the other Loan Documents which are required form provided to be performed or complied with Seller during the Due Diligence Period from tenants designated by such Loan Party before or on such Closing Datethe Purchaser’s lender.
(b) All representations and warranties made hereunder and Title shall have been approved by Purchaser under Section 4 with the title company standing ready to issue an owners policy of title insurance in the other Loan Documents shall be true form customarily delivered in Nebraska insuring Purchaser's interest in the Land and correct as Improvements, dated the day of the Closing Date Closing, with liability in the amount of the Purchase Price, subject only to the Permitted Encumbrances, together with such endorsements as if made on such date Purchaser reasonably may require (both immediately prior to, and after giving effect to, such extension of creditthe "Title Policy").
(c) No Default Seller shall have executed and delivered to Purchaser a certificate (the “Certificate”) attached hereto as Exhibit J updating the representations and warranties of Seller through Closing, which Certificate Seller covenants to deliver unless new matters or Event knowledge of Default a defect arises, in which case Seller shall exist on deliver a Certificate stating such matter. Purchaser may then (i) waive such matter and consummate the Closing Datetransaction contemplated hereby or (ii) terminate this Agreement, in which case neither party shall have any further obligations or would exist after giving effect liabilities hereunder and any money or documents shall be returned to the Loans to be made on such date or party depositing the Letters of Credit to be issued or the Credit Support to be provided on such datesame.
(d) The Agent and the Lenders No Major Tenant shall be in default under its Lease, shall be involved as a debtor in a bankruptcy proceeding, shall have received such opinions of counsel (concerninggiven notice that it is going dark or shall have gone dark, among other things, entry or shall have reduced its space or shall have given notice that it is reducing its space. Each of the order confirming the Plan of Reorganization following tenants is a Major Tenant: Dick’s Sporting Goods, Petsmart, Babies R Us, Famous Footwear, Beauty Brands and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scope, and substance reasonably satisfactory to the Agent, the Lenders, and their respective counselOld Navy.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in Hazardous Materials at the business, operations, assets, properties, liabilities, profits, prospects or financial position Property that were not present at the end of the Loan Parties as determined by Due Diligence Period. In the Agent event that any Purchaser’s Condition Precedent is not satisfied, Purchaser shall give written notice thereof to the Seller and Escrow Agent, the Majority Lenders in their sole discretion.
(l) The Lenders Deposit shall be fully satisfied with returned to the compliance by the Loan Parties with Purchaser and this Agreement shall terminate and both Seller and Purchaser shall thereafter be relieved from any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans liability under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements the indemnification and releases reasonably satisfactory to the Agent are being tendered on the Closing Datehold harmless provisions contained in Section 7.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Conditions Precedent to Closing. Date This Agreement Each Party shall become effective at such time be entitled to refuse Closing for as long as any of the following conditions has not been met or waived as being a condition precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documentsClosing, agreements or other deliveries, provided that such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofcondition is legally waivable:
(a) This All Governmental Approvals required for the consummation of this Agreement and to operate the other Loan Documents Acquired Assets in the manner contemplated by the Toll Manufacturing Agreement have been executed by each party thereto obtained, including without limitation, a license, dated July 16, 2007, to Buyer from Swissmedic for Buyer to manufacture and each Loan Party shall have performed and complied sell the Products at the Real Property, attached hereto as Schedule 4.2(a)(i), as well as the Cantonal Operating Approval dated July 16, 2007, attached hereto (together with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Datequestionnaire) as Schedule 4.2(a)(ii).
(b) All representations The Real Property Deed and warranties made hereunder the related application to the real estate register have been properly signed and entered in the other Loan Documents shall be true and correct as Journal of the Closing Date as if made on Land Registry in the Municipality of Zofingen, with written confirmation of such date (both immediately prior to, and after giving effect to, such extension of credit)entry.
(c) No Default or Event Availability for delivery of Default each closing item specified in Article 4.3(a), but only Buyer shall exist on the be entitled to refuse Closing Date, or would exist after giving effect due to the Loans to be made on absence of such date or the Letters of Credit to be issued or the Credit Support to be provided on such dateitems.
(d) The Agent and the Lenders Availability for delivery of each closing item specified in Article 4.3(b), but only Seller shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion be entitled to be in a form, scope, and substance reasonably satisfactory refuse Closing due to the Agent, the Lenders, and their respective counselabsence of such items.
(e) The Borrower shall have paid all fees and expenses No Material Adverse Change has occurred between the date of the Agent signing of this Agreement and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated therebyClosing Date, including, without limitation pursuant but only Buyer shall be entitled to the Fee Letterrefuse Closing due to such Material Adverse Change.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scopeAll Transferred Employees were duly informed of and substantially all Transferred Employees, and substancein any event all key Transferred Employees identified on Schedule 4.2(f), reasonably satisfactory have consented in writing to the Agent, transfer of all insurance coverage as required by the Agreement.
(g) The Agent and the Lenders shall have had an opportunity, if they so choose, their employment from Seller to examine the books of account and other records and files of the Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified Buyer as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item (B) below, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabove, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another of such Loan Party's officers as to incumbency and signature of its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement and the other Loan Documents have been obtained, and remain in full force and effect; all applicable waiting periods shall have expired without any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganization, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, with retroactive effect as of 1 January 2008. Substantially none of the Transferred Employees and none of the key Transferred Employees have tendered their resignation. To the actual knowledge of the persons listed in Schedule 5.9(g)(i) (whereby it is understood that such persons have no duty of independent verification), none of the key Transferred Employees identified on Schedule 4.2(f) have threatened to such effecttender their resignation. Execution and delivery Only Buyer shall be entitled to refuse Closing due to the Agent by a Lender absence of a counterpart any such item of this Agreement clause (f). Prior to Seller filing the application referred to in letter (b), Buyer and Seller shall be deemed provide each other with a written confirmation by such Lender that that, subject to the provision of the written confirmation of the entry referred to in letter (ib) all above and subject to the actual delivery of the items referenced in Section 4.2(b) and (c) above, the other conditions precedent in this Section 10.1 have been fulfilled met to the their satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderare waived.
Appears in 1 contract
Sources: Asset Purchase Agreement (Arena Pharmaceuticals Inc)
Conditions Precedent to Closing. Date This Agreement Subject to Section 3.02, the obligation of the Lenders hereunder shall become effective at such time as be subject to the following conditions precedent having been satisfied in a manner satisfactory to that the Facility Agent (and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent), in each case with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are required to be performed received on or complied with by such Loan Party before or on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall requestfollowing, each such opinion to be in a form, scope, form and substance reasonably satisfactory to the Facility Agent:
(a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies of the Constituent Documents of the Borrower, the Lenders, and their respective counsel.
(e) The Borrower shall have paid all fees and expenses of the Agent and the Attorney Costs incurred in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, of all insurance coverage as required by the Agreement.
(g) 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 Loan Parties and to make copies thereof, and to conduct a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisalFund, and the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respects.
(h) All proceedings taken in connection with the execution of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to the Agent.
(i) The Agent shall have received a copy of the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization and dated as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of such Loan Party's By-laws Collateral Manager as in effect on the date of such certificate and at all times since a date prior to the date of the resolution described in item Closing Date;
(Bc) below, (B) that attached thereto is a true and complete copy copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement;
(d) a certificate of a resolution adopted by such Loan Party's Board Responsible Officer of Directors the Borrower certifying
(i) as to its Constituent Documents, (ii) as to its resolutions or in the case other action of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance its board of directors or members approving this Agreement and the other Loan Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such resolution representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has not been modified, rescinded or amended occurred and is in full force and effect, (C) that such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovecontinuing, and (Dv) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewith, as applicableits Responsible Officers authorized to execute the Facility Documents to which it is a party; 107
(e) a certificate of another a Responsible Officer of such Loan Party's officers the Collateral Manager certifying (i) as to incumbency its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and signature of the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its Secretary.
(j) The Agent shall have received certificates of good standing, existence or its equivalent with respect to each Loan Party certified representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of a recent date by the appropriate Governmental Authorities of the state or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.
(l) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable laws, statutes, rules and regulations relating to the conduct and operations of the business and properties of the Loan Parties.
(m) The Borrower shall have received the proceeds of the Term Debt and the Agent shall have entered into an Intercreditor Agreement with the administrative agent for the Term Debt substantially in the form of Exhibit E hereto.
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements of the Loan Parties and their Subsidiaries to remain outstanding after the Closing Date (includingexcept to the extent such representations and warranties expressly relate to any earlier date, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent in which case such representations and warranties shall be reasonably satisfied with the true and correct in all intercompany arrangements relating material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the acquisition, ownership incumbency and transfer specimen signature of Inventory of a Loan Party or otherwise.
(p) The Agent and the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (including, without limitation, consents with respect to each Loan Party and each of its SubsidiariesResponsible Officers authorized to execute the Facility Documents to which it is a party;
(f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the transactions interests in the Collateral contemplated by this Agreement Agreement;
(g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor);
(h) legal opinions (addressed to each of the Secured Parties) of (i) DLA Piper LLP (US), counsel to the Borrower and the other Loan Documents Collateral Manager as to corporate, securities, bankruptcy and commercial law, and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;
(i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been obtainedexecuted and delivered by the Borrower, the Collateral Manager, the Collateral Agent and U.S. Bank, in its capacity as Custodian and as Securities Intermediary, and remain shall be in full force and effect; ;
(j) evidence satisfactory to the Facility Agent that all applicable waiting periods shall have expired without any action being taken by any competent authority; Closing Date Expenses and no law or regulation shall be applicable in the judgment outstanding fees and expenses of the Agent that restrains, prevents or imposes materially adverse conditions upon any of the Loan Documents or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers shall have been fully disclosed to the Collateral Agent and the Lenders and there shall Custodian have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.paid in full;
(rk) There shall have been each of the Eligible Hedge Agreements, if any, duly executed and delivered to by the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming the Borrower's Plan of Reorganizationparties thereto, which shall have been certified by the Clerk of the Bankruptcy Court as having been duly entered. Such order shall not have been reversed, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, each be in full force and no appeals (unless consented to by Agent) from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and as defined in the Plan of Reorganization shall have been met (or the waiver thereof shall have been consented to by the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation Date.
(t) After giving effect to the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement), the payment of all fees and expenses required hereunder and the issuance of all Letters of Credit to be issued (including the Existing Letters of Credit), in each case on the date of and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.
(u) The Borrower's Plan of Reorganization and the order of the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance to the Agent. Without limiting the generality of the foregoing, the capital structure of the Loan Parties shall be reasonably satisfactory to the Agent in all respects and the terms of any Debt of the Loan Parties shall be satisfactory to the Agent.
(v) The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory to the Agent are being tendered on the Closing Date.
(w) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agent. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date shall be deemed to be a representation and warranty made by the Borrower to the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction of such Lender, (ii) the decision of such Lender to execute and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lender.;
Appears in 1 contract
Sources: Credit and Security Agreement (TCW Direct Lending VIII LLC)