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
Samples: 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
Samples: 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 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
Samples: Loan Agreement (Expensify, Inc.), Loan Agreement (Expensify, Inc.), Loan Agreement (Expensify, 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 3 contracts
Samples: Acquisition Agreement (Cyco Net Inc), Acquisition Agreement (Cyco Net Inc), Acquisition Agreement (Cyco Net 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 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
Samples: 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 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
Samples: Purchase Agreement (Deep Down, Inc.), Purchase Agreement (Deep Down, Inc.)
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 XXXXXXX XX, 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
Samples: Subscription Agreement, Subscription Agreement (AC Immune SA)
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 (concerningXxxxxx & Xxxxxx 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
Samples: Loan and Security Agreement (CSI Compressco LP), Loan and Security Agreement (CSI Compressco 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 Xxxxxxx Xxxx & Xxxxxxx, Xxxxxx 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
Samples: Share Exchange Agreement (China Wesen Recycling Technology, Inc.), Share Exchange Agreement (China Wesen Recycling Technology, Inc.)
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 transaction 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 of his assets 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 him, 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
Samples: Redemption Agreement (Philips International Realty Corp), Redemption Agreement (Philips International Realty Corp)
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
Samples: Term Sheet (At Home Corp), Term Sheet (At Home 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 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 The following shall be true conditions precedent to Purchaser’s obligation to consummate the purchase and correct as of sale transaction contemplated herein (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.“Purchaser’s Conditions Precedent”):
(i) The Agent Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of this Agreement within the time periods described in said sections.
(ii) Title Company shall be irrevocably committed to issue, at the Closing, the Approved Title Policy.
(iii) Purchaser shall have received a copy of the certificate or articles of incorporation or other constitutive documentsreceived, 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 no less than three (A3) 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 business days prior to the date Closing, executed estoppel certificates in the form of the resolution described in item Approved Estoppels (Bas defined below) below(with no changes other than de minimis changes reasonably approved by Purchaser) and not disclosing the existence of any default under the Leases referenced therein, from tenants occupying at least eighty percent (B80%) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or the leasable space in the case Improvements which is leased as of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance date 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 specifically including all of the last amendment thereto shown on the Major Tenants (as defined below). Each executed estoppel 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 Purchaser shall be deemed to be satisfactory to Purchaser unless Purchaser provides Seller with written notice within three (3) business days of Purchaser’s receipt of such estoppel certificate of its disapproval of such estoppel certificate and the basis of such disapproval. A “Major Tenant” means each of the following tenants at the Property: Usability, PDI, Trilogy and Xxxxxxxx. Seller’s failure to obtain said estoppel certificates shall not be a representation default by Seller under this Agreement. Seller shall prepare, or cause to be prepared, and warranty made by deliver, on or before December 6, 2012, to Purchaser for review and approval the Borrower estoppel certificates Seller intends to deliver to the effect that all tenants, which shall be based on the form of estoppel certificate in the form attached hereto as Exhibit D. If Purchaser fails to notify Seller of its approval of, or any changes to, the estoppel certificates it receives from Seller for approval within three (3) business days following Purchaser’s receipt of the conditions precedent same, Seller may forward such estoppel certificates to all the making tenants of such Loans the Property without Purchaser’s prior approval. Seller shall, not later than promptly after the expiration of the Due Diligence Period, remit, or cause to be remitted, the issuance estoppel certificates to all the tenants of such Letters of Credit the Property for signature with any corrections provided by Purchaser. Estoppel certificates prepared by Seller and approved (or deemed approved) by Purchaser as provided above are referred to, collectively, as “Approved Estoppels”. Notwithstanding the foregoing, in the event the condition described in this Section 9(a)(iii) shall not have been satisfied, with the same effect as delivery either Seller or Purchaser may elect by notice to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated other to extend the Closing Date, for a period not to exceed thirty (30) days in order to satisfy 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 Lendercondition.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
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
Samples: Purchase and Sale of Stock Agreement (Atlantic International Entertainment LTD), Purchase and Sale Agreement (Atlantic International Entertainment LTD)
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
Samples: Purchase and Sale of Stock Agreement (Madison Ave. Media, Inc.), Share Exchange Agreement (Kahzam, 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
Samples: Letter of Credit and Reimbursement Agreement, Letter of Credit and Reimbursement Agreement (Commonwealth Edison Co)
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 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 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 Xxxxx X. 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
Samples: Deed in Lieu of Foreclosure Agreement, Deed in Lieu of Foreclosure 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
Samples: 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
Samples: Redemption Agreement (Philips International Realty Corp), Redemption Agreement (Philips International Realty Corp)
Conditions Precedent to Closing. Date This Agreement The obligations of the Acquired Fund to consummate the transactions provided for herein shall become effective be subject, at such time as the Acquired Fund’s election, 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) hereofconditions:
(a) This All representations and warranties of the Trust, on behalf of the Acquiring Fund, and of the Acquired Fund contained in this Agreement shall be true and correct in all material respects as of the other Loan Documents have been executed date hereof and, except as they may be affected by each party thereto the transactions contemplated by this Agreement, as of the Effective Time, with the same force and each Loan Party shall have performed effect as if made on and complied with all covenants, agreements and conditions contained herein 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 DateEffective Time.
(b) All representations The Acquired Fund and warranties made hereunder the Acquiring Fund shall have agreed on the number of full and fractional Acquiring Fund Shares to be issued in connection with the other Loan Documents shall be true and correct as of the Closing Date as if made on Reorganization after such date (both immediately prior to, and after giving effect to, such extension of credit)number has been calculated in accordance with paragraph 2.2.
(c) No Default All required consents, orders and permits of federal, state and local regulatory authorities deemed necessary by the Acquired Fund and the Trust to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or Event permit would not involve a risk of Default shall exist a material adverse effect on the Closing Date, assets or would exist after giving effect to properties of the Loans to be made on such date Acquiring Fund or the Letters Acquired Fund, provided that either party hereto may for itself waive any of Credit to be issued or the Credit Support to be provided on such dateconditions.
(d) The Agent Registration Statement shall have become effective under the 1933 Act and the Lenders 1940 Act and no stop orders suspending the effectiveness thereof shall have received such opinions of counsel (concerningbeen issued and, among other things, entry to the best knowledge of the order confirming parties hereto, no investigation or proceeding for that purpose shall have been instituted or be pending, threatened or contemplated under the Plan of Reorganization and proper notice having been given) for 1933 Act or 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 counsel1940 Act.
(e) The Borrower Each party 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 other such additional instruments and bills of sale, checks, assignments, receipts or other 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 such other party 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 Lenderits counsel.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Whitebox Mutual Funds), Agreement and Plan of Reorganization (Whitebox Mutual Funds)
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 Xxxx-Xxxx 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) Xxxx-Xxxx shall have delivered to RM Eastview all of the documents provided herein for said delivery.
10.2 The obligations of Xxxx-Xxxx to assume the Ground Lease and to perform the other covenants and obligations to be performed by Xxxx-Xxxx 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 Xxxx-Xxxx):
(a) RM Eastview shall have taken, at its sole cost and expense and in a manner reasonably satisfactory to Xxxx-Xxxx, 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 Xxxx-Xxxx 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 Xxxx-Xxxx 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 PostXxxx-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 Xxxx 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
Samples: 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 (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
Samples: Subscription Agreement (Lifezone Metals LTD), Subscription Agreement (Lifezone Metals 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
Samples: Note Purchase Agreement (KULR Technology Group, Inc.), Note Purchase Agreement (KULR Technology Group, 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, 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) Xxxxx Xxxxxxx 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
Samples: Credit and Security Agreement (BlackRock Private Credit Fund), Credit and Security Agreement (BlackRock Private Credit 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. Xxxxxx 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 Xxxxxx, in a form reasonably acceptable to Broadridge, that the Acquisition Transaction has closed;
(iii) written confirmation from Xxxxxx, in a form reasonably acceptable to Broadridge, that Xxxxxx consents to Broadridge’s entry into the New Services Agreement with Ridge concerning the Transferred Accounts;
(iv) written confirmation from Xxxxxx 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 Xxxxxx 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
Samples: Termination and Mutual Release Agreement (Broadridge Financial Solutions, Inc.), Termination and Mutual Release Agreement (Penson Worldwide Inc)
Conditions Precedent to Closing. Date This 5.1 Parties' conditions precedent prior to the Closing Date. All of the rights, duties and obligations of each of the Parties hereto under this Agreement shall become effective at such time as are subject to the following conditions precedent having been satisfied for the exclusive benefit of each of the Parties fulfilled in a manner satisfactory all material aspects in the reasonable opinion of each of the Parties or to be waived by each or any of the Parties, as the case may be, as soon as possible after the Effective Date, however, unless specifically indicated as otherwise, not later than one year after the Effective Date and not late than 60 calendar days prior to the Agent Closing Date (as hereinafter defined; and in such date being 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:"Subject Removal Date" herein):
(a) This Agreement and receipt of all necessary approvals, including Regulatory Approval, from all Regulatory Authorities having jurisdiction over 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 hereto 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
(b) if required, shareholders of the Optionee passing an ordinary resolution or, where required, a special resolution, approving the terms and conditions of this Agreement and all of the other Loan Documents have been obtainedtransactions contemplated hereby or, 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 alternative, shareholders of the Agent that restrains, prevents or imposes materially adverse conditions upon any Optionee holding 100% of the Loan Documents issued shares of the Optionee providing written consent resolutions evidencing their approval to the terms and conditions of this Agreement and all of the transactions contemplated hereby.
5.2 Parties' waiver of conditions precedent. The conditions precedent set forth in section "5.1" hereinabove are for the exclusive benefit of each of the Parties hereto and may be waived by each or any of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among Parties in writing and in whole or in part at any time, however, not later than 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 Subject Removal 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
Samples: Mineral Assets Option Agreement (Uranium Energy Corp), Mineral Assets Option Agreement (Uranium Energy Corp)
Conditions Precedent to Closing. Date This Furukawa shall have the right, subject to section 2.11, to notify JDS and Uniphase that it is terminating this Agreement shall become effective at (and Uniphase and JDS acknowledge and agree that in such time as instance, the Merger Agreement is automatically terminated) if the following conditions precedent having have not been satisfied in a manner satisfactory to fulfilled (which are for the Agent (FCo Group's exclusive benefit and in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall may be in form and substance satisfactory to the Agent), in each case with the consent waived by Furukawa on behalf of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:FCo Group):
(a) This Agreement on the Effective Date, Osler, Xxxxxx & Harcourt shall have delivered an opinion letter addressed to Furukawa or its Affiliates substantially in the form attached hereto as Schedule A;
(b) as of the Effective Date, the Japanese taxation authorities shall have continued to confirm orally to representatives of Furukawa, in a form satisfactory to Furukawa acting reasonably, that the conversion of the JDS Common Shares into Class B Non-Voting Preference Shares and the other Loan Documents exchange thereof for Exchangeable Shares and the Ancillary Rights will occur on a tax-free basis under the taxation Laws of Japan;
(c) on or prior to the Effective Date a Registration Rights Agreement substantially in the form attached hereto as Schedule B shall have been executed by each party thereto Uniphase and each Loan Party shall have performed and complied with all covenantsExchangeco, agreements and conditions contained herein and in amended as required if the other Loan Documents which Exchangeable Shares are required to be performed or complied with held 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 more than one Affiliate 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 Furukawa on the Closing Effective 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 on or prior to the Lenders Effective Date, the Uniphase Rights Agreement shall have received been amended in a form satisfactory to Furukawa, acting reasonably, such opinions of counsel amendments to include provisions providing that (concerning, among other things, entry i) FCo Group will not be an "Acquiring Person" as a result of the order confirming acquisition of Uniphase Common Shares pursuant to the Plan Merger Agreement; (ii) so long as FCo Group owns 5% or more of Reorganization and proper notice having been given) for the Loan Parties as outstanding Uniphase Common Shares, the Agent or any Lender definition of "Acquiring Person" in the Rights Agreement shall request, each such opinion to not be in a form, scopeamended without the prior written consent of Furukawa, and substance reasonably satisfactory to (iii) any member of the AgentFCo Group may acquire, directly or indirectly, the Lendersshares or assets of any Person that owns Uniphase Common Shares, and their respective counsel.without causing any member of the FCo Group to become an "Acquiring Person", provided that the FCo Group agrees to sell such Uniphase Common Shares within 180 days of the completion of the acquisition;
(e) The Borrower on the Effective Date, Xxxxxxxx & Xxxxxxxx LLP 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 delivered an opinion letter addressed 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 Uniphase substantially in the form of Exhibit E hereto.the opinion letter required by section 2.9(e) and upon which Furukawa and its Affiliates shall be entitled to rely; and
(nf) 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 on or other intercreditor provisions contained therein or applicable thereto).
(o) The Agent shall be reasonably satisfied with the all intercompany arrangements relating prior to the acquisitionEffective Date, ownership professional fees (both accounting and transfer of Inventory of a Loan Party or otherwise.
(plegal) 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 incurred by this Agreement and the other Loan Documents have been obtained, and remain Furukawa 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 assessing Alternative Transactions shall have been fully disclosed reimbursed 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 arrangementsFurukawa by Uniphase or JDS.
(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
Samples: Support Agreement (Furukawa Electric Co LTD), Support Agreement (JDS Uniphase Corp /Ca/)
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 Acquired Company 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
Samples: Purchase and Sale Agreement (Intelligent Security Networks, Inc.), Purchase and Sale Agreement (Patient Portal Technologies, 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) hereofThe obligation of Purchaser to close under this Agreement is subject to all of the following:
(ai) This Agreement and the other Loan Documents Seller shall not have been executed by each party thereto and each Loan Party shall have performed and complied with all covenantsbreached any of its representations, agreements and conditions contained herein and in the other Loan Documents which are required to be performed warranties, or complied with by such Loan Party before or on such Closing Date.
(b) All covenants under this Agreement; Seller's representations and warranties made hereunder and in the other Loan Documents shall be true and correct as of the Closing Date date of Closing; and Seller shall have complied with all of the obligations required to be performed by Seller under this Agreement at or prior to Closing.
(ii) The Title Company shall be unconditionally prepared to issue an owner's title insurance policy on the ALTA form and with such endorsements as if made selected by Purchaser in an amount equal to the Purchase Price insuring Purchaser's ownership of the Property subject to no exceptions, except for those Title Objections which Purchaser elects to waive pursuant to Section 4 above.
(iii) Purchaser shall have received all Approvals for the Project on such date (both immediately prior toa valid, irrevocable, unqualified and unconditioned basis, and after giving effect tosuch Approvals shall be final and not subject to appeal or litigation.
(iv) The absence of any material changes in the status of the use, such extension title, occupancy, or physical condition of creditthe Property (unless caused or consented to by Purchaser).
(cv) No Default or Event Geotechnical and soil conditions suitable for Purchaser’s intended development of Default the Property, in compliance with the Brownfields Notice, in form and substance acceptable to Purchaser in its sole and absolute discretion.
(vi) Seller shall exist have delivered the SEDG Release.
(vii) Seller shall have prepared, delivered, and placed an instrument of record, in substance and form reasonably acceptable to Purchaser, stating that, among other things, the construction timeline set forth in this Agreement shall control in the event of a conflict between this Agreement and Section 5.3 of Declaration of Covenants, Conditions, and Restrictions for Union Square South Elm Development Group as set forth in Exhibit H attached hereto.
(viii) Purchaser’s internal corporate approval of the Property for a new store location.
(b) In the event that any of the conditions precedent set forth in Section 11(a) above have not been fulfilled on the Closing Date, or would exist after giving effect will not be fulfilled by the Closing Date, whether by way of example and not limitation, due to the Loans rejection of an Approval or to Purchaser's determination in good faith that all such conditions precedent likely will not be made on such date or satisfied prior to the Letters of Credit to be issued or the Credit Support to be provided on such date.
Closing Date (d) The Agent and the Lenders without taking into account any potential extensions thereof), Purchaser shall have received such opinions of counsel the right, at its option, to (concerningi) waive the unsatisfied condition(s) precedent and proceed to Closing, among other things(ii) terminate this Agreement by delivering written notice to Seller, entry of in which event the order confirming the Plan of Reorganization Xxxxxxx Money shall be immediately returned to Purchaser 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, Purchaser and substance reasonably satisfactory to the Agent, 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 any of the Loan Documents and the transactions contemplated therebyno further rights, including, without limitation pursuant to the Fee Letter.
obligations or liabilities hereunder (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 except for those that expressly survive termination 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.
or (iiii) 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 extend the Closing Date and certifying for up to sixty (A60) that attached thereto is a true and complete copy of days in order for such Loan Party's By-laws as in effect on the date of such certificate and at all times since a date prior condition 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 agreement 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, Seller 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 unduly withheld, without Purchaser waiving its right to exercise either of the Plan of Reorganization shall have occurred options set forth in clauses (i) or shall be scheduled to occur but for (ii) above in the initial extension of credit under the Post-Confirmation Agreement event that such condition is not satisfied on or after before the Consummation Date.
(t) After giving effect to extended date of Closing. Notwithstanding 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)foregoing provision, 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 event that 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 set forth in Section 11(a) above have not been fulfilled by the date of Closing due to breach or default by Seller, then Purchaser may, in addition to the making remedies set forth above, pursue any and all of such Loans or the issuance of such Letters of Credit have been satisfied, with the same effect as delivery its rights set forth in Section 16(a) below (and any termination pursuant 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 above shall not prevent Purchaser from exercising any and all 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 its rights set forth in this Section 10.1, and (iii16(b) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderbelow).
Appears in 1 contract
Samples: Purchase and Sale Agreement
Conditions Precedent to Closing. Date This Agreement The obligation of Purchaser to purchase the Property shall become effective at such time as be conditioned upon satisfaction of the following conditions precedent having been satisfied at or prior to Closing, any of which may be waived by Purchaser in a manner satisfactory its sole and absolute discretion (the “Conditions Precedent 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:Closing”):
(a) This Agreement and the other Loan Documents All conditions of title have been executed by each party thereto met pursuant to Subparagraph 6(a) and each Loan Party Seller shall have performed and complied cured any title objection Seller has agreed to cure in accordance 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 DateSubparagraph 6(d).
(b) All representations and warranties made hereunder and Seller is not in the other Loan Documents shall be true and correct as default of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit)this Agreement.
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect to the Loans to The representations and warranties by Seller contained in this Agreement must be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such datetrue.
(d) The Agent and the Lenders Purchaser shall have received such opinions of counsel (concerningapprovals from Xxxxxxxxxx County, among other thingsMaryland, 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, scopefunding commitment letter from a third party lender, and substance reasonably satisfactory an award letter for Low Income Housing Tax Credits from the Maryland Department of Housing and Community Development to build an affordable, multi-family residential unit building on the Agent, the Lenders, and their respective counselProperty.
(e) The Borrower Purchaser and Seller’s affiliate, Xxxxxxxx Redland Road, L.C., shall have paid all fees enter into a Temporary Construction and expenses Easement Agreement for the use of adjacent property (no more than 1 building pad on the adjacent property) for staging and storage of materials by Purchaser for construction of the Agent and building on the Attorney Costs incurred in connection with Property. In the event that any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant foregoing Conditions Precedent to the Fee Letter.
(f) To the extent Closing are 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 satisfied on 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 Closing, then Seller or Purchaser may elect to either (i) waive the resolution described applicable unsatisfied Conditions Precedent to Closing and proceed to Closing on the scheduled Closing date, in item the Purchaser’s sole discretion, or (Bii) belowimmediately terminate this Agreement by written notice to the other party, in which case the Deposit shall be returned to Purchaser within five (B5) days of such termination and thereafter the parties shall be relieved of all further liability hereunder with the exception of Purchaser’s obligations to Seller that attached thereto is a true and complete copy survive any termination of this Agreement. In the event 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 termination of this Agreement and the other Loan Documents by Purchaser, Purchaser shall, at no additional cost or expense to which it is a party and that such resolution has not been modifiedSeller, rescinded or amended and is in full force and effectassign to Purchaser all contracts, (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 hereinabovepermits, and (D) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement applications, 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 documents requested 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 Purchaser that were prepared for the Term Debt substantially in the form of Exhibit E heretoProperty or performed for Purchaser.
(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
Samples: Purchase and Sale Agreement (Comstock Holding Companies, Inc.)
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 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 Agreement shall become effective at such time as The issuance of the Notes is subject to the satisfaction of the following conditions precedent having (and such issuance shall become effective on and as of the first date (the “Effective Date”) on which such conditions precedent have been satisfied in a manner satisfactory to the Agent or (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 exception of the Majority Lenders to condition set forth in subsection 3.01(c) below, which is non-waivable) waived by the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofRequired Holders:
(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 Administrative Agent and the Lenders shall have received such opinions of counsel (concerning, among other things, entry of on or before the order confirming Effective Date the Plan of Reorganization and proper notice having been given) for the Loan Parties as the Agent or any Lender shall requestfollowing, each dated such opinion to be day (unless otherwise specified), in a form, scope, form and substance reasonably satisfactory to the Agent, the Lenders, and their respective counsel.
Administrative Agent (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.unless otherwise specified):
(i) The Agent shall have received a copy Copies of the certificate Notes payable to the Initial Holders, duly executed by the Co-Issuers, to the extent that physical Notes have been requested by the Initial Holders pursuant to the terms of Section 2.09(c).
(ii) A security agreement in substantially the form of Exhibit C hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 4.01(i) or articles of incorporation or other constitutive documentsotherwise, in each case amended as amended, the “Security Agreement”), duly executed by each Note Party, together with:
(A) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Required Holders may deem reasonably necessary or desirable in order to date, of each perfect and protect the second priority (subject only to the Lien of the Loan Parties, certified as of a recent date by the Secretary of State or other appropriate official First Lien Collateral Agent in favor of the state holders of the First Lien Obligations) liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(B) evidence of the completion of all other recordings and filings of or with respect to the Security Agreement that the Required Holders may reasonably deem necessary or desirable in order to perfect and protect the security interest created thereunder, and
(C) evidence that all other jurisdiction actions that the Required Holders may reasonably deem necessary or desirable in order to perfect and protect the second priority (subject only to the Lien of its organization the First Lien Collateral Agent in favor of the holders of the First Lien Obligations) liens and dated as security interests created under the Security Agreement has been taken.
(iii) A copy of a recent date; a certificate of the Secretary of each State of the Loan Partiesjurisdiction of formation of each Note Party, dated reasonably near the Closing Date and Effective Date, certifying (A) that attached thereto is as to a true and complete correct copy of the charter or similar organizational document of such Loan Note Party and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Note Party's By-laws as ’s charter (or similar organization document) on file in effect on such Secretary’s office, (2) such Note Party has paid all franchise taxes to the date of such certificate and at all times since a date prior to (3) such Note Party is duly organized and in good standing or presently subsisting under the date laws of the resolution described in item State of the jurisdiction of its organization.
(Biv) belowA certificate of each Note Party, (B) that attached thereto is signed on behalf of such Note Party by its President or a true Vice President and complete copy of a resolution adopted by such Loan Party's Board of Directors (its Secretary or any Assistant Secretary, or in the case such Note Party does not have a Secretary or any Assistant Secretary, any other duly qualified officer of a Loan such Note Party, dated the Effective Date (the statements made in which certificate shall be true on and as of the Effective Date), certifying as to (A) the absence of any amendments to the charter or similar organizational document of such Note 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 Secretary of State’s certificate referred to in Section 3.01(a)(iii), (B) a true and correct copy of the bylaws of such Note Party as in effect on the certificate of Effective Date, (C) the due organization and good standing furnished hereinaboveor valid existence of such Note Party under the laws of the jurisdiction of its organization, and the absence of any proceeding for the dissolution or liquidation of such Note Party and (D) as the absence of any event occurring and continuing, or resulting after giving effect to the incumbency and specimen signature issuance of each of such Loan Party's officers executing this Agreement or any other Loan Document delivered in connection herewith or therewiththe Notes, as applicable; that constitutes a certificate of another of such Loan Party's officers as to incumbency and signature of its SecretaryDefault.
(jv) 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 A certificate of the state President or a Vice President and the Secretary or an Assistant Secretary of each Note Party, or in the case such Note Party does not have a Secretary or any Assistant Secretary, any other jurisdiction duly qualified officer of incorporation such Note Party, certifying the names and true signatures of the officers of such Note Party authorized to sign each Note Document to which it is or organization is to be a party and in each the other jurisdiction listed on Schedule 10.1(j)documents to be delivered hereunder and thereunder.
(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.
(lvi) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any and all applicable lawsIntercreditor Agreement, 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 in substantially in the form of Exhibit E hereto.
(nvii) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements Evidence of the Loan Parties and their Subsidiaries Note Parties’ insurance coverage reasonably satisfactory to remain outstanding after the Closing Date (includingRequired Holders, without limitation, any subordination or other intercreditor provisions contained therein or applicable thereto)demonstrating that the Note Parties’ existing insurance coverage remains in effect.
(oviii) The Agent shall be reasonably satisfied with the all intercompany arrangements relating One or more favorable opinions of counsel to the acquisitionNote Parties, 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 covering such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents matters as the Agent Agents or its counsel the Required Holders may reasonably may require or request.
(sb) The Bankruptcy Court Company shall have entered an order confirming paid all accrued fees of the Borrower's Plan Agents and all reasonable expenses of Reorganizationthe Agents (including the reasonable accrued fees and expenses of counsel to the Agents), which and the Co-Issuers shall have been certified by complied with the Clerk terms 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 Fee Letter.
(unless consented to by Agentc) 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 effectiveness of the Plan of Reorganization shall have occurred or shall be scheduled to occur but for (other than the initial extension execution 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), as specified in 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 $25,000,000been satisfied or waived in accordance with its terms.
(ud) The Borrower's Plan of Reorganization and To the order of extent that physical Notes have been requested by the Bankruptcy Court confirming such Plan of Reorganization shall be reasonably satisfactory in form and substance Initial Holders pursuant 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 Section 2.09(c), the Loan Parties Initial Holders shall be satisfactory to have received such Notes, duly executed by the AgentCo-Issuers.
(ve) The Agent Required Holders shall have received results of searches such other approvals, opinions or other evidence documents as the Required Holders may 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 Daterequest.
(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
Samples: Second Lien Senior Secured Note Agreement (Triple Crown Media, Inc.)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as the The following are conditions precedent having been satisfied to Buyers obligations under this Agreement (the "Buyer Conditions Precedent"). The Buyer Conditions Precedent are intended solely for the benefit of Buyer and may be waived only by Buyer in a manner satisfactory to writing. In the Agent (and in the case of event any documentsBuyer Condition Precedent is not satisfied, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent)Buyer may, in each case with the consent its sole and absolute discretion, terminate this Agreement and all obligations of the Majority Lenders to the extent required in clauses Buyer and Seller hereunder (aexcept provisions of this Agreement which recite that they survive termination) through (w) hereof shall terminate and be of no further force or Section 13.2(a)(ii) hereof:effect.
(a) This Agreement Buyer's inspection, review and approval, within the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied with Inspection Period, of all covenants, agreements and conditions contained herein and in aspects of the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing DateReal Property.
(b) The issuance by the Title Company to Buyer of the Title Policy subject only to the Approved Title Exceptions and including the Endorsements.
(c) Buyer's receipt, within the Inspection Period, of an "as-built", ALTA/ACSM survey (the "Survey") of the Real Property, reflecting all plottable items referred to in the Preliminary Report, prepared by a surveyor or civil engineer licensed in the State of California, complying with the requirements, and containing the certification, set forth in Exhibit L attached hereto.
(d) All of Seller's representations and warranties contained in or made hereunder pursuant to this Agreement shall have been true and in the other Loan Documents correct when made and 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 Seller shall have paid fully complied with all fees of Seller's duties and expenses of the Agent and the Attorney Costs incurred obligations contained in connection with any of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letterthis Agreement.
(f) To There shall not have first arisen between the extent not previously provided under end of the DIP Loan AgreementInspection Period and the Closing Date, the Agent shall have received evidenceany litigation or administrative agency action or other pending governmental proceeding which, after Closing, would, in formBuyer's reasonable discretion, scopematerially adversely affect the value of the Real Property or the ability of Buyer to operate the Real Property in the manner in which it is currently being operated, and substancenor any pending proceedings which would cause the redesignation or other modification of the zoning classification of, reasonably satisfactory or of any building or environmental code requirements applicable to, any of the Real Property. Seller shall notify Buyer promptly upon Seller's having knowledge of any litigation to which Seller is a party or of any administrative proceeding specifically relating to the Agent, of all insurance coverage as required by the AgreementReal Property.
(g) The Agent and the Lenders Seller shall have had provided Buyer with an opportunityupdated Lease Schedule three (3) business days prior to Closing, if they so choose, to examine which updated Lease Schedule must not indicate any material adverse change from the books of account and other records and files of Lease Schedule last approved by Buyer. Seller shall specifically identify any changes from the Loan Parties and to make copies thereofmost recently approved Lease Schedule, and to conduct Buyer shall have performed a pre-closing audit which shall include, without limitation, verification of Inventory, Accounts, and Combined Availability, and to conduct a pre-closing appraisal, and confirms the results of such examination and audit and appraisal shall have been satisfactory to the Agent in all respectsLease Schedule.
(h) All proceedings taken in connection Seller shall terminate prior to the Closing, at no cost or expense to Buyer, any and all Service Contracts or Other Documents affecting the Real Property that are not Assigned Contracts. Concurrently with the execution expiration of this Agreementthe Inspection Period, all other Loan Documents and all documents and papers relating thereto Buyer shall be satisfactory in form, scope, and substance provide to Seller a list of the AgentAssigned Contracts.
(i) The Agent In Buyer's reasonable determination there shall not have received a copy occurred, between the end 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 Inspection Period 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 Date, any material adverse change in effect on the date of such certificate and at all times since a date prior or addition to the date of information or items reviewed and approved by Buyer during 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 SecretaryInspection Period.
(j) The Agent shall Buyers review of the Required Estoppel Certificates to confirm that they contain the documentation and/or information reasonably requested by Seller, that they have received certificates of good standingnot been modified in any material way, existence or its equivalent with respect to each Loan Party certified as and that they do not contain any assertion of a recent date material default by the appropriate Governmental Authorities Seller. Notwithstanding the foregoing, Estoppel Certificates will not be considered non-conforming if the tenant has revised or deleted Paragraph 12 of the state estoppel certificate (which relates to environmental matters) or other jurisdiction if the tenant delivers an estoppel certificate 14 substantially in the form required by such tenant's lease; provided, however, that if the tenant revises Paragraph 12 in a manner that discloses a material breach of incorporation or organization the Seller's legal obligations relative to environmental matters, such revision will be subject to Buyer's review and in each other jurisdiction listed on Schedule 10.1(j)approval.
(k) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position Buyer's receipt of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretionAssumption Documentation.
(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
Samples: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time (a) the Government Approvals (as the following conditions precedent having defined in Article 10) should 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 obtained in form and substance satisfactory to the Agent), in each case with the consent both parties;
(b) all representations and warranties of the Majority Lenders to Shareholders and Seminis contained in this Agreement were true when made and shall be true in all respects as of the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:Closing Date as if such representations and warranties were made at and as of such Closing Date;
(ac) This Agreement Shareholders and the other Loan Documents have been executed by each party thereto and each Loan Party shall Seminis should both have performed and complied with all covenants, and should not have breached any agreements and conditions contained herein and in the other Loan Documents which are covenants required by this agreement to be performed or complied with by such Loan Party before them on 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, 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 no action or proceeding shall have received such opinions of counsel (concerning, among been instituted or threatened before any court or other things, entry governmental body or by any public authority seeking to restrain or prohibit any 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.transactions contemplated by this agreement;
(e) The Borrower since the Effective date, there 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 businesscondition (financial or otherwise) or prospects of Hungnong Companies, operationsor (ii) any change in political circumstances, assets, properties, liabilities, profits, prospects laws and regulations that will make the transactions contemplated by this agreement impractical or financial position of the Loan Parties as determined by the Agent and the Majority Lenders in their sole discretion.illegal;
(lf) 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 Seminis shall have received the proceeds of the Term Debt and the Agent shall have entered into completed 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 initial review with respect to each Loan Party and each of its Subsidiaries) to the transactions contemplated by this Agreement Agreement, including, without limitation, legal, financial, accounting, environmental, operational and engineering matters concerning Hungnong Companies;
(g) The Shareholders shall have completed the other Loan Documents restructuring of Affiliate Companies, as provided in Section 6.1, hereof, shall have been obtainedsent a written notice to Seminis of such restructuring, and remain in full force and effect; shall make available to Seminis satisfactory evidence of such restructuring;
(h) The Shareholders shall cause 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.
directors (q) The terms of all sourcing arrangements among the Loan Parties registered 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 delayednon-registered) and the "Effective Date" and Consummation Date statutory auditors of Hungnong Companies to submit the resignation letters as of the Plan of Reorganization closing Date and shall have occurred or shall be scheduled cause Hungnong to occur but for convene 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" shareholders meeting as of the Borrower's Plan closing Date and shall, as proposed by Seminis, elect new directors and statutory auditors, and amend the articles of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000.incorporation; and
(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 The Shareholders shall cause each of such LenderYoung Il Chemical Co., (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 10.1Ltd., Simon telecom Co., Ltd., and (iii) all documents sent Sehung Finance Co., Ltd. and the Nong Min Journal Co., Ltd. to such Lender for approvalprovide Seminis and the Remaining Hungnong Companies with a release and indemnification, consent or satisfaction were acceptable to such Lenderthe form of which is attached hereto as Attachment IX.
Appears in 1 contract
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 Xxxxxxx X. XxXxxxx 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 Xxxxxxx, Xxxx & Xxxxx 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 Xxxxxxx X. XxXxxxx 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 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:
1. The shareholders of Ottawa shall have duly adopted this Agreement in accordance with and as required by law and in accordance with its Certificate of Incorporation and Bylaws.
2. All necessary governmental and regulatory orders, consents, clearances and approvals and requirements shall become have been secured and satisfied for the consummation of such transactions, including without limitation, those of the Federal Reserve System, the Michigan Division of Financial Institutions, the Department of the Treasury, the Office of Thrift Supervision and the Federal Deposit Insurance Corporation to the extent required.
3. Prior to or at the Effective Time, no material investigation by any state or federal agency shall have been threatened or instituted seeking to enjoin or prohibit, or enjoining or prohibiting, the transactions contemplated hereby and no material governmental action or proceeding shall have been threatened or instituted before any court or government body or authority, seeking to enjoin or prohibit, or enjoining or prohibiting, the transactions contemplated hereby other than investigations, actions and proceedings which have been withdrawn prior to or at the Effective Time without material adverse effect to Fifth Third or Ottawa and other than regularly-scheduled regulatory examinations.
4. Any waiting period mandated by law in respect of the final approval by any applicable Federal or State regulator(s) of the transaction contemplated herein shall have expired. 28NEXT PAGE
5. Fifth Third shall have registered its shares of Common Stock to be issued to the Ottawa shareholders hereunder with the SEC pursuant to the Securities Act of 1933, as amended, 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. The shares of Fifth Third Common Stock to be issued to the Ottawa shareholders hereunder shall have been authorized for trading on the Nasdaq Stock Market upon official notice of issuance.
B. Conditions to the Obligations of Fifth Third: The obligation of Fifth Third to consummate the transactions provided for herein is subject to the fulfillment at such time as or prior to the Effective Time of each of the following conditions precedent having been satisfied unless waived by Fifth Third in a manner satisfactory writing delivered to Ottawa which specifically refers to the Agent (condition or conditions being waived:
1. All of the representations and warranties of Ottawa set forth in the case Section II of any documents, agreements or other deliveries, such documents, agreements and deliveries this Agreement 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 in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This date of this Agreement and at and as of the other Loan Documents have been executed by Closing Date (as hereinafter defined) as if each party thereto such representation and each Loan Party shall have performed warranty was given on and complied with all covenants, agreements and conditions contained herein 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.
, except for (bi) All any such representations and warranties made hereunder and in the other Loan Documents as of a specified date, which shall be true and correct in all material respects as of such date and (ii) inaccuracies of representations and warranties which would not have, or would not reasonably be expected to have, a material adverse effect on the financial condition, business or operations of Ottawa, AmeriBank and the Non-Bank Subsidiaries taken as a whole.
2. Ottawa shall have performed all of the obligations required of it under the terms of this Agreement in all material respects.
3. Silver, Xxxxxxxx & Taff, L.L.P., counsel for Ottawa, shall have delivered an opinion addressed to Fifth Third in substantially the form appended hereto as Appendix A.
4. The aggregate amount of consolidated shareholders' equity (including Common Stock, Additional Paid-In Capital and Retained Earnings and excluding Treasury Stock) of Ottawa immediately prior to the Effective Time, as shown by and reflected in its books and records of accounts on a consolidated basis in accordance with GAAP, consistently applied, shall not be less than $75,000,000. For purposes of this subparagraph 4 to Section VI.B., (A) any expenses or accruals after the date hereof relating to (i) the adjustments contemplated by Section IV.B.(i) herein, (ii) termination or funding of any of Benefit Plans of Ottawa, AmeriBank and the Non-Bank Subsidiaries as contemplated herein, (iii) expenses associated with this Agreement and the transactions contemplated herein, and (iv) expenses and losses associated with valuing of Ottawa's or AmeriBank's investments at current market value as required by GAAP (including SFAS 115) shall be excluded for purposes of calculation of Ottawa's shareholders' equity as contemplated herein prior to the Effective Time.
5. Fifth Third's independent certified public accountants shall have reviewed the unaudited consolidated financial statements of Ottawa as at the end of the month immediately preceding the Effective Time, as well as the unaudited separate financial statements of AmeriBank 29NEXT PAGE and the Non-Bank Subsidiaries as of the same date, performed such other auditing procedures as may be requested by Fifth Third and reported in good faith that they are not aware of any material modifications which would have a material adverse effect on the financial condition of Ottawa, AmeriBank or any of the Non-Bank Subsidiaries taken as a whole that should be made in order for such financial statements to (i) be in conformity with GAAP, consistently applied, excluding the presentation of footnotes, and (ii) accurately state the financial condition and results of operations of Ottawa, AmeriBank and the Non-Bank Subsidiaries.
6. The receipt of a certificate from Ottawa, AmeriBank and the Non-Bank Subsidiaries, executed by the chief executive officer and chief financial officer of each, dated the Closing Date, certifying to their best knowledge and belief that: (i) all of the representations and warranties set forth in Section II hereof were true and correct as of the Closing Date date of this Agreement and as if of the Effective Time in all material respects, except for (y) any such representations and warranties made on as of a specified date, which shall be true and correct in all material respects as of such date (both immediately prior todate, and after giving effect to, such extension (z) inaccuracies of credit).
(c) No Default or Event of Default shall exist on the Closing Daterepresentations and warranties which would not have, or would exist after giving not reasonably be expected to have, a material adverse effect to on the Loans to be made on such date financial condition, business or the Letters operations 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 (concerningOttawa, 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 appraisalAmeriBank, and the results of such examination Non-Bank Subsidiaries taken as a whole; and audit (ii) it has met and appraisal shall have been satisfactory to the Agent fully complied in all respects.
(h) All proceedings taken in connection material respects with all of the execution obligations required of it under the terms of this Agreement, except for breaches of obligations which would not have, or would not reasonably be expected to have, any material adverse effect on the financial condition, business or operations of Ottawa, AmeriBank and the Non-Bank Subsidiaries, taken as a whole.
7. The total issued and outstanding shares of Ottawa Common Stock shall not exceed 7,477,841 shares including all other Loan Documents and all documents and papers relating thereto shall be satisfactory options to purchase Ottawa Common Stock, plus shares issued in form, scope, and substance to the Agentconnection with Ottawa's Dividend Reinvestment Program as permitted herein.
(a) In consideration of the consummation of this transaction, the Directors of Ottawa shall execute and deliver to Fifth Third an agreement by which the Directors shall agree for a period of two (2) years after the Effective Time to refrain from directly or indirectly, whether for their own account or for the account of any other person, firm, corporation, or other business organization, (i) The Agent in the states of Michigan, Ohio, Kentucky, Indiana, Florida or Arizona, 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 Fifth Third any person who the Director has actual knowledge that such person is, or was at any time during the period the Director was employed by Fifth Third or during the Restricted Period, employed by or associated with Fifth Third 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 lists to Fifth Third. Notwithstanding any provision contained in this Section 8, the restrictions contained herein shall have received a copy not be applicable to any activity of the certificate Director or articles any activity of incorporation his or other constitutive documents, in each case amended to date, of each of her spouse which existed at 30NEXT PAGE 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 time of this Agreement and which was disclosed by the other Loan Documents Director 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 hereinaboveFifth Third, 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 may be waived by Fifth Third with respect to each Loan Party certified as one or more Directors in writing at any time and from time to time in Fifth Third's sole discretion after receipt 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 written request 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.Director
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 to Purchaser's obligation to consummate the purchase and sale transaction contemplated herein (the "Purchaser's Conditions Precedent"):
(i) Purchaser shall not have terminated this Agreement 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 terms of this Agreement within the Majority Lenders to the extent required time periods described 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 Datethis Agreement.
(bii) All representations and warranties made hereunder and Title Company shall stand ready to issue, at the Closing, a Standard ALTA Owner's Policy of title insurance, with extended coverage over the standard exceptions, insuring Purchaser's fee simple interest in the other Loan Documents shall be true and correct as Real Property, dated the day of the Closing Date Closing, with liability in the amount of the Purchase Price, subject only to the Permitted Exceptions, together with such endorsements as if made on such date Purchaser may reasonably require (both immediately prior to, and after giving effect to, such extension of creditthe "Title Policy").
(ciii) 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 dateIntentionally Deleted.
(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).
(kiv) There shall be no material adverse change breach of any of Seller's representations, warranties or covenants set forth in the business, operations, assets, properties, liabilities, profits, prospects or financial position Section 6 and Section 9 of this Agreement as 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 AgentClosing.
(v) The Agent Seller shall have received results of searches or other evidence reasonably satisfactory delivered to the Agent (Title Company the items described 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 AgentSection 10. 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 10.18(a) are solely for the benefit of Purchaser and may be waived only by Purchaser. Purchaser shall, at all times prior to the termination of this Agreement, have the right to waive any of these conditions. If any of the Purchaser's Conditions Precedent are not satisfied by Closing, Purchaser at its option may terminate this Contract. In such event, the Deposit shall be immediately returned to Purchaser and (iii) all documents sent neither party shall have any further rights or obligations under this Agreement, except for those obligations that are to survive the termination of this Agreement, as expressly set forth elsewhere in this Agreement, provided, that if such Lender for approvalfailure of condition is caused by a Seller default, consent or satisfaction were acceptable to such LenderPurchaser may pursue its remedies under Section 16 below.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Golden Enterprises Inc)
Conditions Precedent to Closing. Date This The respective obligations of each party under this Agreement with respect to the Merger are subject to the satisfaction of each of the following conditions, unless waived by each of the parties that is the beneficiary of the satisfaction of such condition, at or before the Closing:
(a) holders of a majority of the outstanding shares of Company Common Stock shall have approved this Agreement and the Merger in accordance with the DGCL and the certificate of incorporation and bylaws of the Company;
(b) the Registration Statement shall have become effective at in accordance with the provisions of the Securities Act and no stop order suspending such time effectiveness shall have been issued and remain in effect;
(c) the shares of Qwest Common Stock issuable in the Merger shall have been approved for inclusion in NASDAQ/NM, if necessary, subject only to official notice of issuance;
(d) each of the Company, its Subsidiaries, Qwest and Qwest Subsidiary shall have obtained from each Governmental Body or other person each Approval or taken all actions required to be taken in connection with each Approval, and all waiting, review or appeal periods under the Hart-Xxxxx-Xxxxxx Xxx or otherwise prescribed with respect to each Approval shall have terminated or expired, 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)may be, in each case with respect to an Approval that is required or advisable MERGER AGREEMENT 9 15 on the consent part of such person for (1) the due execution and delivery by such person of each Transaction Document to which it is or may become a party, (2) the conclusion of the Majority Lenders Transactions, (3) the performance by such person of its obligations with respect to the extent required Transactions under each Transaction Document to which it is or may become a party and (4) the exercise by such person of its rights and remedies with respect to the Transactions under each Transaction Document to which it is or may become a party or with respect to which it is or may become an express beneficiary, except in each case referred to in the preceding clauses (a1), (2), (3) through and (w4) hereof where the failure to obtain such Approval, individually 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 aggregate, could not reasonably be expected to be performed or complied with by such Loan Party before or have a Material Adverse Effect 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.person;
(e) The Borrower shall have paid all fees and expenses except as disclosed in Section 4.9 of the Agent Company's Disclosure Schedule or Section 5.7 of Qwest and Qwest Subsidiary's Disclosure Schedule, no Action shall be pending against the Attorney Costs incurred Company, its Subsidiaries, Qwest and Qwest Subsidiary or, to their knowledge, threatened against any of them or any other person that, individually or in connection with the aggregate, if determined adversely to any of them, could reasonably be expected to have a Material Adverse Effect on any of the Loan Documents Company, its Subsidiaries, Qwest and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.Qwest Subsidiary;
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidence, except as disclosed 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 Section 4.3 of the Loan Parties Company's Disclosure Schedule or Section 5.3 of Qwest and to make copies thereofQwest Subsidiary's Disclosure Schedule, 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 none of the certificate Company, its Subsidiaries, Qwest and Qwest Subsidiary (1) is in violation or articles breach of incorporation or other constitutive documents, in each case amended default with respect 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 any Regulation of such Loan Party's By-laws as in effect on the date any Governmental Body or any decision, ruling, order or award of such certificate and at all times since a date prior any arbitrator applicable to the date of the resolution described in item it or its business, properties or operations or (B) belowany agreement, (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (indenture 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 instrument to which it is a party and that such resolution has not been modified, rescinded or amended and is in full force and effectby which it or its properties may be bound or affected, (C2) that such Loan Party's certificate would be in violation or articles breach of incorporation or other constitutive documents have not been amended since the date default with respect to any Regulation of any Governmental Body or any decision, ruling, order or award of any arbitrator applicable to it or its business, properties or operations in connection with or as a result of the last amendment thereto shown on conclusion of any of the certificate Transactions or (3) has received notice that, in connection with or as a result of good standing furnished hereinabovethe conclusion of any of the Transactions, it is or would be in violation or breach of or default with respect to any Regulation of any Governmental Body or any decision, ruling, order or award of any arbitrator applicable to it or its business, properties or operations, except in each case referred to in the preceding clauses (1), (2) (3), and (D4) for violations, breaches or defaults that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect on such person;
(g) except as disclosed in Section 4.6 of the Company's Disclosure Schedule, since December 31, 1996, no circumstance has existed and no event has occurred that has had, will have or could reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries;
(h) each Transaction Document required to be executed and delivered 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 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 Time shall have been so filed, registered, published or recorded executed and delivered by the respective parties thereto;
(i) the representations and warranties of each other party contained in each Transaction Document to the satisfaction which such other party is a party shall be true and correct in all material respects on and 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 satisfiedDate, with the same force and effect as delivery to the Agent though made on and the Lenders as 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 (a) Buyer’s obligation to purchase the Premises is contingent upon each of the following conditions precedent having been being 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 with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofwriting by Buyer:
(ai) This Agreement Title to the Premises shall be free and clear of all encumbrances or defects other than Permitted Encumbrances;
(ii) Buyer’s ability to obtain an owner’s title insurance policy in the full amount of the Purchase Price from a title insurance company (the “Title Company”) of Buyer’s choice, at standard rates, insuring Buyer’s title and interest in the Real Property and the other Loan Documents have been executed by each party thereto Building, free and each Loan Party shall have clear of all liens, encumbrances and exceptions except the Permitted Encumbrances;
(iii) All of Seller’s representations and warranties are true and correct in all material respects as if made on and as of the Closing Date;
(iv) Seller has performed and complied with all of its covenants, agreements and conditions contained herein and in the other Loan Documents which are obligations under this Agreement;
(v) Seller shall have delivered all documentation it is required to deliver pursuant to the provisions of Section 10(a), below; and
(vi) There shall have been no fire or casualty affecting the Premises which would enable Buyer to cancel this Agreement in accordance with the terms hereof. If Seller is unable to satisfy all of the foregoing conditions precedent, Buyer may waive one or more conditions precedent or terminate this Agreement, in either event by written notice to Seller within ten (10) business days of the discovery Seller’s inability to satisfy the subject condition. If Buyer elects to terminate this Agreement pursuant to this Paragraph 6, Buyer shall be performed or complied with entitled to a return of the Deposit by such Loan Party before or on such Closing DateEscrow Agent whereupon all rights and liabilities of the parties hereto by reason of this Agreement (except those obligations and liabilities specifically set forth herein to survive termination) shall be deemed at an end, except that nothing herein contained shall relieve Seller from liability hereunder for breaches of any conditions which also constitute covenants.
(b) All representations The obligation of Seller to sell the Premises 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 close 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 subject to timely satisfaction or waiver of the Agent that restrains, prevents or imposes materially adverse following conditions upon any of the Loan Documents or any of the transactions contemplated thereby.precedent:
(qi) The terms Each representation and warranty 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 Buyer contained herein shall be outstanding. All conditions precedent to confirmation true and to the "Effective Date" under correct in all material respects as if 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.
(wii) The Agent Buyer shall have received timely delivered to Escrow Agent the balance of the Purchase Price, subject to adjustments and prorations pursuant to Section 5 above and all documents and instruments, including Uniform Commercial Code financing statements, other closing deliveries required by law under Section 10(b).
(iii) Buyer shall not then be in default of any covenant or reasonably requested by the Agent agreement to be filed, registered, published or recorded to create or perfect the first priority Liens intended to be created performed by Buyer under the Loan Documents and all such documents and instruments shall have been so filed, registered, published or recorded to the satisfaction of the Agentthis Agreement. The acceptance by the Borrower of Seller may waive 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 10.16(b) and proceed to the Closing. If the conditions set forth in this Section 6(b) are not satisfied by Buyer, or waived by Seller, then this Agreement shall terminate, the Deposit, together with all interest accrued thereon shall be paid to Seller, and (iii) all documents sent the parties shall have no further obligations to each other except for such Lender for approval, consent or satisfaction were acceptable to such Lenderprovisions that specifically survive the termination of this Agreement.
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 364-day $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. 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 the 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)(iireceipt by the Company of same-day funds in the full amount of the purchase price for the Shares being purchased hereunder; (ii) hereof:
completion of the purchases and sales under the Agreements with Purchasers of Shares having an aggregate purchase price of at least $20,000,000; (aiii) This Agreement the accuracy of the representations and warranties (as if such representations and warranties were made on the Closing Date) made by the Purchasers and the other Loan Documents have been executed by each party thereto fulfillment of those undertakings and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in covenants of the other Loan Documents which are Purchasers required to be performed fulfilled prior to the Closing; (iv) the 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 the 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 any agreement with any Other Purchaser 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; and (vi) the sale of Shares shall not be prohibited by such Loan Party before any law or on such Closing Dategovernmental order or regulation.
(b) All The 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 as if made on such date Date; (both immediately ii) that the Company has fulfilled all undertakings and covenants set forth herein required to be fulfilled prior to, and after giving effect to, such extension of credit).
to the Closing; (ciii) No Default or Event of Default that the Common Stock shall exist be quoted on the Closing DateNasdaq National Market System (“Nasdaq”); (iv) the absence of any Material Adverse Change (as defined in Section 4.22 below) affecting the Company since September 30, 2004; (v) no proceeding challenging this Agreement 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 therebyhereby or thereby or seeking to prohibit, includingalter, without limitation pursuant to prevent or materially delay 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 Closing 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 instituted or shall be satisfactory in formpending before any court, scopearbitrator or governmental body, and substance to agency or official; (vi) the Agent.
(i) The Agent shall have received a copy sale 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 Shares shall not be unreasonably withheld prohibited by any law or delayedgovernmental order or regulation; and (vii) and the "Effective Date" and Consummation Date purchase 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 Shares having an aggregate purchase price among 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 Purchasers of at least $25,000,00020,000,000.
(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
Samples: Purchase Agreement (Napster Inc)
Conditions Precedent to Closing. (a) Purchaser’s obligation under this Agreement to purchase the Premises (other than the Parking Spaces) on the Closing Date This Agreement shall become effective at such time as is subject to the fulfillment of each of the following conditions precedent having been satisfied in a manner satisfactory conditions, subject, however, to the Agent provisions of Section 9(c):
(i) The representations and in the case warranties of any documents, agreements or other deliveries, such documents, agreements and deliveries Seller contained herein shall be true, accurate and correct in form and substance satisfactory to the Agent), in each case with the consent all material respects as of the Majority Lenders Closing Date except to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:they relate only to an earlier date;
(aii) This Agreement Seller shall be ready, willing and able to deliver title to the Premises (other Loan Documents than the Parking Spaces, which will be transferred to Purchaser in accordance with Section 13(a)) in accordance with the terms and conditions of this Agreement; and
(iii) Seller shall have been executed by each party thereto delivered all the documents and each Loan Party other items required pursuant to Section 10, and shall have performed all other covenants, undertakings and obligations, 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 the Seller at or on such Closing Dateprior to the Closing.
(b) All representations Seller’s obligation under this Agreement to sell the Premises (other than the Parking Spaces, which will be sold and warranties made hereunder and transferred to Purchaser in accordance with Section 13(a)) to Purchaser is subject to the other Loan Documents shall be true and correct as fulfillment of each of the Closing Date as if made on such date (both immediately prior tofollowing conditions, and after giving effect tosubject, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect however to the Loans to be made on such date or the Letters provisions 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.Section 9(c):
(i) The Agent representations and warranties of Purchaser contained herein shall be true, accurate and correct in all material respects as of the Closing Date, except to the extent that they relate to an earlier date;
(ii) Purchaser shall have received a copy of delivered the certificate funds required hereunder and all the documents to be executed by Purchaser set forth in Section 11 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or articles of incorporation complied with by Purchaser at 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 Closing;
(iii) All consents and approvals of the resolution described in item (B) below, (B) that attached thereto is a true governmental authorities 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 parties to agreements to which it Purchaser is a party and or by which Purchaser’s assets are 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 Seller at or prior to the Agent such additional instruments and documents as the Agent or its counsel reasonably may require or request.Closing;
(siv) The Bankruptcy Court On or prior to the Closing Date, (A) Purchaser 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 itself or any of its 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, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of the Bankruptcy Court as having been duly entered. Such order creditors, (D) Purchaser shall not have been reversed, modified, amended, vacatedadjudicated a bankrupt or insolvent, or stayedhad a petition for reorganization granted with respect to Purchaser, and(E) Purchaser 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 it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws 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 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 terminated prior 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 Closing 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.; and
(v) The Agent Purchaser shall have received results of searches or other evidence reasonably satisfactory to delivered the Agent (in each case funds required under the Sale-Purchase Agreement also dated as of a date reasonably satisfactory December 20, 2007 between the Seller and the Purchaser regarding the sale of the real properties recorded at page 261 of volume 1295 of Río Piedras Norte, property number 35,972 and all of the documents to be executed by 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 DatePurchaser under said Sale-Purchase Agreement.
(wc) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law In the event that any condition contained in Section 9(a) 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 (b) is not 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 party entitled to the satisfaction of such Lender, condition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) terminate this Agreement. In the decision of event such Lender party elects to execute and deliver to the Agent an executed counterpart of terminate this Agreement, this Agreement was made by shall be terminated and neither party shall have any further rights, obligations or liabilities hereunder, except for the Surviving Obligations, and except that if Purchaser terminates this Agreement because of a condition contained in Section 9(a) is not satisfied, then Purchaser shall be entitled to a return of the Downpayment subject to Section 24(d) and provided Purchaser is not otherwise in default hereunder. Nothing contained in this Section 9(c) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such Lender independently and without reliance on the Agent or any other Lender as party is expressly entitled to the satisfaction of any such condition precedent set forth as provided in this Section 10.1, and 9(a) or (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderb).
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 All obligations of Georgia Power under this Agreement are subject to: (wi) hereof the fulfillment (or Section 13.2(a)(iithe waiver thereof in writing by Georgia Power), prior to or at the Closing, of the condition that GTC's representations and warranties contained in this Agreement shall be true in all material respects at and as of the time of the Closing; and (ii) hereof:
(a) This Agreement GTC's performance of and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and complied compliance 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 GTC prior to or on such Closing Dateat the Closing.
(b) All obligations of GTC under this Agreement are subject to: (i) the fulfillment (or the waiver thereof in writing by GTC), prior to or at the Closing, of the condition that Georgia Power's representations and warranties made hereunder and contained in the other Loan Documents this Agreement shall be true in all material respects at and correct as of the Closing Date as if made on such date time of the Closing; and (both immediately ii) Georgia Power's performance of and compliance with all agreements and conditions required by this Agreement to be performed or complied with by Georgia Power prior to, and after giving effect to, such extension of credit)to or at the Closing.
(c) No Default or Event All obligations of Default shall exist on the Closing Date, or would exist after giving effect Georgia Power under this Agreement and all obligations of GTC under this Agreement are subject to the Loans to be made on such date or condition that the Letters Securities and Exchange Commission under the Public Utility Holding Company Act of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders 1935 shall have received such opinions granted all necessary approvals 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 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 Secretarytransaction contemplated hereby.
(jd) The Agent shall have received certificates All obligations of good standingGTC under this Agreement are subject to receipt by GTC of good, existence or its equivalent with respect marketable and indefeasible title, as specified in Section 1(a) hereof, to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state Georgia Power Substation Facilities free and clear of all liens, mortgages, security interests, claims, charges and encumbrances (except for liens for current taxes or other jurisdiction of incorporation or organization assessments not yet due and in each other jurisdiction listed on Schedule 10.1(jpayable), with such exceptions as are acceptable to GTC.
(ke) There shall be no material adverse change All obligations of Georgia Power under this Agreement are subject to receipt by Georgia Power of good, marketable and indefeasible title, as specified in the businessSection 1(b) hereof, operations, assets, properties, liabilities, profits, prospects or financial position to each of the Loan Parties GTC Substation Facilities free and clear of all liens, mortgages, security interests, claims, charges and encumbrances (except for liens for current taxes or assessments not yet due and payable), with such exceptions as determined by the Agent and the Majority Lenders in their sole discretionare acceptable to Georgia Power.
(lf) The Lenders shall be fully satisfied with the compliance by the Loan Parties with any All obligations of Georgia Power under this Agreement and all applicable laws, statutes, rules and regulations relating obligations of GTC under this Agreement are subject to the conduct and operations fulfillment, prior to the Closing, of the business condition that Georgia Power shall have obtained and properties delivered to GTC a release in recordable form executed by Chase Manhattan Bank as Trustee under Georgia Power's First Mortgage Indenture, dated as of March 1, 1941, releasing the Loan PartiesGeorgia Power Substation Facilities from the lien of said Indenture.
(mg) The Borrower All obligations of Georgia Power under this Agreement and all obligations of GTC under this Agreement are subject to the fulfillment, prior to the Closing, of the condition that GTC shall have received obtained and delivered to Georgia Power a release in recordable form executed by SunTrust Bank, Atlanta, as Trustee under GTC's Indenture dated as of March 1, 1997, releasing the proceeds GTC Substation Facilities from the lien 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 heretosaid Indenture.
(nh) The Agent shall be satisfied with All obligations of Georgia Power under this Agreement and all obligations of GTC under this Agreement are subject to the terms and conditions receipt 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 regulatory approvals of the execution, delivery and approvals (including, without limitation, consents with respect to each Loan Party and each performance 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 consummation of the transactions contemplated therebyhereby.
(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 The obligation of the Administrative Agent and each Lender to execute and deliver this Agreement shall become effective at such time as and the obligation of each Lender to make the Loan hereunder and the effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent having been satisfied in a manner satisfactory to on or before the Closing Date:
(a) The Administrative Agent shall have received on or before the day of the Closing Date the following, each dated such day (and in the case of any documentsunless otherwise specified), agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to the Agent)Administrative Agent (unless otherwise specified) and (except for the Notes, as to which one original of each shall be sufficient) 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 and the other Loan Documents have been A Note duly executed by each party thereto the Borrower 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 payable to the Loans to be made on such date or order of each Lender that has requested 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 Agentsame.
(i) The Completed requests for information dated a recent date, including UCC, judgment, tax, litigation and bankruptcy searches with respect to each applicable Loan Party, and, in the case of UCC searches, listing all effective financing statements filed in the jurisdictions specified by the Administrative Agent shall have received that name any such Loan Party as debtor, together with copies of such financing statements.
(ii) This Agreement, duly executed by the Loan Parties and the other parties thereto.
(iii) An Appraisal of each Borrowing Base Asset listed on Schedule II which is designated as a Recently Developed Asset or a Recently Redeveloped Asset,
(iv) As to each Borrowing Base Asset:
(A) the most recently prepared land survey of such Borrowing Base Asset, prepared by a duly licensed and registered land surveyor, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than (i) Permitted Liens and (ii) encroachments and other defects that do not materially and adversely affect the value or operation of such property or are reasonably acceptable to the Administrative Agent,
(B) certified copies of each Management Agreement and Franchise Agreement, Qualified Ground Lease, Material Contracts, and all amendments thereto, entered into with respect to such Borrowing Base Asset,
(C) an original of the Existing Qualified Mortgage and the related Existing Qualified Note made in connection with such Borrowing Base Asset, if applicable, together with any other items required pursuant to Section 8.01,
(D) a copy of an ALTA Owner’s Policy of Title Insurance of the certificate Borrower or articles a Subsidiary thereof, as applicable, covering such Borrowing Base Asset showing the identity of incorporation the fee titleholder thereto and all matters of record as of the date of such policy, and
(E) (1) a “Phase I” environmental assessment of such Borrowing Base Asset, which report (i) has been prepared by an environmental engineering firm reasonably acceptable to the Administrative Agent and (ii) is otherwise in form and substance reasonably acceptable to the Administrative Agent and (2) any other environmental assessments or other constitutive documentssimilar reports relating to such Borrowing Base Asset, including any “Phase II” environmental assessment prepared or recommended by such environmental engineering firm to be prepared for such Borrowing Base Asset. For the avoidance of doubt, the parties hereby acknowledge that the items required to be delivered to the Administrative Agent pursuant to this Section 3.01(a)(v) shall not be required for the Borrowing Base Assets listed on Schedule II not indicated with an asterisk which qualify as Borrowing Base Assets (under and as defined in each case amended the Existing Credit Agreement) immediately prior to date, the Effective Date.
(v) Certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each of Loan Party for which it is the ultimate signatory approving the transactions contemplated by the Loan PartiesDocuments and each Loan Document to which it or such Loan Party is or is to be a party, certified as and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the transactions under the Loan Documents and each Loan Document to which it or such Loan Party is or is to be a recent date by the Secretary party.
(vi) A copy 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 State (or equivalent authority) of the jurisdiction of incorporation, organization or formation of each Loan PartiesParty and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and correct copy of the charter, certificate of limited partnership, limited liability company agreement or other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office, (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office, (2) such Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) A copy of a certificate of the Secretary of State (or equivalent authority) of each jurisdiction in which any Loan Party owns or leases property or in which the conduct of its business requires it to qualify or be licensed as a foreign 50
(viii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary (or those of its general partner or managing member, if applicable), dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) that attached thereto is the absence of any amendments to the constitutive documents of such Loan Party and its general partner or managing member, as applicable, since the date of the certificate referred to in Section 3.01(a)(vi), (B) a true and complete correct copy of the bylaws, operating agreement, partnership agreement or other governing document of such Loan Party's By-laws Party and its general partner or managing member, as applicable, as in effect on the date of such certificate on which the resolutions referred to in Section 3.01(a)(v) were adopted and at all times since a date prior to on 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 effectClosing Date, (C) that the due incorporation, organization or formation and good standing or valid existence of such Loan Party's certificate Party and its general partner or articles of incorporation managing member, as applicable, as a corporation, limited liability company or other constitutive documents have not been amended since partnership organized under the date laws of the last amendment thereto shown on jurisdiction of its incorporation, organization or formation and the certificate absence of good standing furnished hereinaboveany proceeding for the dissolution or liquidation of such Loan Party and its general partner or managing member, and as applicable, (D) the truth of the representations and warranties contained in the Loan Documents as to though made on and as of the incumbency Closing Date and specimen signature (E) the absence of any event occurring and continuing, or resulting from the Initial Borrowing, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) certifying the names and true signatures of the officers of such Loan Party's officers executing this Agreement , and of the general partner or any other Loan Document delivered in connection herewith or therewith, as applicable; a certificate of another managing member of such Loan Party's officers , as applicable, authorized to incumbency sign each Loan Document to which such Loan Party is or is to be a party and signature of its Secretarythe other documents to be delivered hereunder and thereunder.
(jx) The Agent shall have received certificates of good standingSuch financial, existence or its equivalent with respect to business and other information regarding each Loan Party certified and its Subsidiaries 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 lawshave requested, 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, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, historical operating statements (if any), audited annual financial statements for the Term Debtyear ending 2014, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lenders’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date) and other agreements of financial projections for 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)Parent Guarantor’s consolidated operations.
(oxi) The Agent shall Evidence that all insurance required to be reasonably satisfied with the all intercompany arrangements relating maintained pursuant to the acquisition, ownership Loan Documents has been obtained and transfer of Inventory of a Loan Party or otherwiseis in effect.
(pxii) The Agent and An opinion of Hunton & Xxxxxxxx LLP, special counsel for the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals (includingLoan Parties, without limitation, consents with respect to each Loan Party such matters (and each of its Subsidiariesin substantially the form) to as any Lender through 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 Administrative 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 may reasonably may require or request.
(sxiii) The Bankruptcy Court shall have entered an order confirming An opinion of counsel for the Borrower's Plan of Reorganization, which shall have been certified by Loan Parties reasonably satisfactory to the Clerk Administrative Agent covering certain corporate formalities and other matters that the Administrative Agent on behalf 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 DateLenders may reasonably request.
(txiv) After giving effect to An opinion of Shearman & Sterling LLP, counsel for the making of any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement)Administrative Agent, 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 Administrative Agent.
(vxv) The Agent shall have received results A Notice of searches or other evidence reasonably satisfactory Borrowing related to the Agent (in each case Initial Borrowing, dated as of a date reasonably satisfactory and delivered to the AgentAdministrative Agent at least three (3) indicating the absence of Liens on any Collateral and proceeds thereof, except for Liens for which termination statements and releases reasonably satisfactory Business Days prior to the Agent are being tendered on the Closing Date.
(wxvi) 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 A certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, to such effect. Execution and delivery stating that after giving effect to the Agent by a Lender of a counterpart of this Agreement Initial Borrowing, the Parent Guarantor shall be deemed confirmation in compliance with the covenants contained in Section 5.04, together with supporting information in form satisfactory to the Administrative Agent showing the computations used in determining compliance with such covenants if requested by such Lender the Administrative Agent.
(b) The Lenders shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries that directly or indirectly owns a Borrowing Base Asset, including the terms and conditions of the charter and bylaws, operating agreement, partnership agreement or other governing document of each of them.
(c) The Lenders shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Lenders.
(d) Before and after giving effect to the transactions contemplated by the Loan Documents, there shall have occurred no Material Adverse Change since December 31, 2014.
(e) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) all conditions precedent could reasonably be expected to result in this Section 10.1 have been fulfilled to the satisfaction of such Lender, a Material Adverse Effect or (ii) purports to affect 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 legality, validity or any other Lender as to the satisfaction enforceability of any condition precedent set forth in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent Loan Document or satisfaction were acceptable to such Lenderthe consummation of the transactions contemplated thereby.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as 4.1 The Closing is conditioned upon the following conditions precedent having been Conditions Precedent being satisfied in a manner satisfactory to the Agent or waived by applicable parties/governmental authorities (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:if applicable):
(a1) 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 covenantsThe representations, 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 covenants and warranties made hereunder by the Parties on the Execution Date shall have remained true, accurate and complete, without misleading statements, misrepresentations and omissions in the other Loan Documents shall be true and correct all material respects as of the Closing Date as if made on such date Date;
(both immediately prior to, 2) The Seller shall have approved the Transaction in accordance with its constitutional document;
(3) The Purchaser shall have approved the Transaction in accordance with its constitutional document;
(4) Declaration of concentration of business operators in respect of the Transaction shall have been filled and after giving effect to, such extension of credit)approved.
(c5) No Default or Event All other Relevant Investors participating in the Reorganization shall have approved the Reorganization, and confirmed the articles of Default association to be adopted by the Purchaser after the Reorganization;
(6) The Purchaser shall exist have issued capital contribution certificates to the Seller and registered the Seller on the Closing Date, or would exist after giving effect internal register of members of the Purchaser. The Purchaser shall have had extensive communication with the Administration for Market Regulation in relation to the Loans necessary changes of company registrations to be made on such date or filed with the Letters Administration for Market Regulation upon completion of Credit the Reorganization (including but not limited to be issued or registering the Credit Support to be provided on such dateSeller as the Purchaser’s shareholder and filing the director designated by the Seller with Administration for Market Regulation), and obtained the administration’s informal confirmation.
(d7) The Agent and Valuation Report on 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 Target Assets 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 this Agreement shall have been satisfactory to approved or filed in accordance with the Agent in all respects.PRC laws and regulations;
(h) 8) All proceedings taken in connection other applicable approvals, permits, filings and registrations from or 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 relevant authorities with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities of the state Transaction shall have been obtained or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).completed;
(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.
(l9) 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 or their subsidiaries shall have entered into an Intercreditor Agreement relevant oil and gas pipeline facility service contracts in accordance with the administrative agent for the Term Debt substantially in the form Article 5.6 (3) of Exhibit E hereto.this Agreement;
(n10) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term Debt) and other agreements Each 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 Relevant Investors with respect to each Loan Party the Reorganization shall have respectively executed transaction agreements, the core conditions and each terms of its Subsidiaries) to which are substantially the transactions contemplated by same as this Agreement and the other Loan Documents have been obtainedAgreement, 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 a closing and to cash capital contribution (if applicable) thereunder on the "Effective Date" under and same date as defined in the Plan Closing of Reorganization shall the Transaction have been met satisfied. For the Conditions Precedent above, the Seller is responsible for condition (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 Agreement2), the payment Purchaser is responsible for conditions (3), (5), (6) and (10), and both Parties are responsible for conditions (1), (4), (7), (8) and (9). For the avoidance of all fees and expenses required hereunder and doubt, the issuance of all Letters of Credit condition precedent to be issued solely handled by one Party can only be waived by the other Party, provided that conditions (including the Existing Letters of Credit2), in each case on the date of (3), (4), (7) 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(8) cannot be waived.
(u) 4.2 The Borrower's Plan of Reorganization and Parties hereby agree to cause all the order of the Bankruptcy Court confirming such Plan of Reorganization shall Conditions Precedent as set forth under Article 4.1 to be reasonably satisfactory in form and substance satisfied as soon as practicable prior 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 If the satisfaction of any condition precedent applicable to one Party needs the assistance from the other Party, the other Party shall provide such assistance. The Parties shall remain in communication on the related matters in relation to each Condition Precedent, and coordinate and solve the problems encountered during this process in a timely manner. After the Execution Date, neither Party shall engage in any conduct with the purpose to prevent or restrict the satisfaction of each 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 Lenderunder Article 4.1.
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
Samples: Equity Transfer Agreement (ChinaNet Online 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:
(a) This Agreement The obligation of Seller to consummate the transactions contemplated herein shall be subject to the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on 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 Datedate of Closing.
(b) All representations and warranties made hereunder and in The obligation of Purchaser to consummate the other Loan Documents transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver of the following conditions:
(i) Seller shall have no knowledge of any suit, action, investigation, inquiry or other proceeding by any governmental authority or any other person, pending or threatened, relating to the Property or the operation of the Facilities, which would have a material adverse effect on the Properties; (ii) Purchaser shall have obtained all Department of Social Services licenses and permits necessary to complete the legal transfer to Purchaser of the Properties as operating independent and/or assisted living facilities, as is appropriate for each specific property. Purchaser agrees to use good faith efforts to obtain all such licenses and permits and to submit applications for such licenses and permits during the first thirty days of the Study Period: Purchaser shall promptly provide Seller with a copy of all such applications and will keep Seller apprised of the status of such application processing; (iii) Seller shall deliver to the Purchaser true and correct copies of properly executed letters from Seller to all tenants under the Leases to be dated as of Closing, advising of the change of ownership, which letters may be prepared jointly by Seller and Purchaser at the option of Purchaser; (iv) All documents required hereunder for Closing Date as if made on such date (both immediately prior to, shall have been executed and after giving effect to, such extension of credit)delivered by Seller.
(c) No Default or Event of Default shall exist on In 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 event any condition precedent set forth in this Paragraph 8 is not satisfied in full as of the date scheduled for Closing, pursuant to Section 10.19, as extended in accordance with such Section 9, the party in favor of whom such condition precedent is made may, in its sole discretion, (i) waive the condition in writing or (ii)provide the other party with written notice of its intention to terminate this Agreement. If the unsatisfied condition is not satisfied within five (5) days following receipt of such notice, then this Agreement shall be terminated, upon which, in the case of a failure of the conditions set forth in Paragraph 8(b), the Deposit and all accrued interest shall be returned to Purchaser and no party shall have any further obligation hereunder, provided however Seller shall have the right to extend the Closing date for up to sixty (iii60) all documents sent to days and Purchaser may not terminate the Agreement during such Lender for approval, consent or satisfaction were acceptable to extention if the unsatisfied condition arises under Paragraph 8(b)(ii) and such Lenderlicenses and permits can reasonably be obtained during the extention period.
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) hereofThe following shall be conditions precedent to Purchaser's obligation to consummate the purchase and sale transaction contemplated herein:
(ai) This Agreement and Title Company, after performing a final “rundown” of title, will stand ready to issue at 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 Closing an ALTA Owner's Policy of Title Insurance on the standard form used in the other Loan Documents which are required State of New Jersey with liability in the full amount of the Purchase Price, subject only to be performed or complied with by such Loan Party before or on such Closing Datethe Permitted Exceptions (the “Title Policy”) insuring Purchaser's interest in the Premises, dated as of the date of the Closing.
(bii) All representations Seller’s representations, warranties and warranties made hereunder and covenants set forth in the other Loan Documents this Agreement shall be true and correct in all material respects as of the date of Closing;
(iii) Seller will have remediated, or caused to be remediated, the Premises to the level specified in Section 5(c) and received its Seller’s Environmental Approvals.
(iv) No pending or threatened litigation, administrative proceedings, investigations, or other form of governmental enforcement actions or proceedings exist as of the Closing, which are related to, directed at, or otherwise affecting the use, operation, or occupancy of any portion of the Premises.
(v) The issuance of all necessary approvals (if any) from the New Jersey Department of Environmental Protection and the Planning Board (including site plan approval), and the good faith and diligent review of its application for such approvals, but not in any way limiting the Planning Board from exercising its legally-authorized discretion and any additional necessary approvals from Seller for the redevelopment of the Premises in accordance with the Selected Proposal, which Purchaser shall make a good faith and diligent effort to secure. (These approvals are exclusive of those described in Section 5(c) above, which remain the sole responsibility of Seller).
(vi) To the extent necessary for Project financing, the issuance of the following: Xxxxxx County Planning Board approval, Hudson-Essex & Passaic Soil Conservation District approval, NJDEP BSDW Safe Drinking Water Permit, NJDEP Treatment Works approval, which Purchaser shall make a good faith and diligent effort to secure.
(vii) Amendment to the current Redevelopment Plan to permit the Selected Proposal.
(viii) Seller has executed, and is not in default or breach of, a Redeveloper’s Agreement and a Financial Agreement (in forms materially consistent with Appendix G and Appendix H of the RFP).
(ix) Notwithstanding anything to the contrary in Section 4 above, Purchaser can extend the Closing Date for a period of up to six (6) months, but in no event beyond May 31, 2010, upon payment of a non-refundable extension fee of $600,000 (to be prorated if extension is less than six (6) months), if:
(A) The potential of a riparian claim by the State of New Jersey to a portion of the Property exists (the “Riparian Claim”);
(B) That Riparian Claim interferes with Purchaser’s ability to secure financing to perform its obligations under this Agreement and/or its Redeveloper’s Agreement with Seller; and
(C) Purchaser has and is diligently using its best efforts to clear title from such the Riparian Claim. In connection with the foregoing, Seller shall cooperate with and assist Purchaser before and after the Closing with Purchaser’s efforts to remove and/or settle the Riparian Claim in accordance with the terms and conditions set forth in that certain Cost Allocation and Cooperation Agreement attached hereto as Exhibit D.
(b) The conditions set forth in Section 6(a) above are solely for the benefit of Purchaser and, if not satisfied as of the Closing Date (as if made on such date (both immediately prior todefined below), and after giving effect to, such extension of credit)shall be subject to the remedies set forth in Section 15(b) below.
(c) The following shall be conditions precedent to Seller's obligation to consummate the purchase and sale transaction contemplated herein:
(i) Purchaser has executed, and is not in default or breach of, a Redeveloper’s Agreement and a Financial Agreement (in forms materially consistent with Appendix G and Appendix H of the RFP).
(ii) No Default pending or Event of Default shall exist on the Closing Datethreatened litigation, administrative proceedings, investigations, or would other form of governmental enforcement actions or proceedings exist after giving effect to as of the Loans to be made on such date Closing, which are related to, directed at, or otherwise affecting the Letters use, operation, or occupancy of Credit to be issued or any portion of the Credit Support to be provided on such datePremises.
(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 givenconditions set forth in Section 6(c) above are solely 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 benefit 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 opportunitySeller and, 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 not satisfied 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 (includingas defined below), 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 subject 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 remedies set forth in this Section 10.1, and (iii15(a) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderbelow.
Appears in 1 contract
Conditions Precedent to Closing. Date This (1) Purchaser’s obligation under this Agreement shall become effective at such time as to purchase the Property is subject to the fulfillment of each of the following conditions precedent having been satisfied in a manner satisfactory conditions, subject, however, to the Agent (provisions of Section 10(3):
1. The representations and in the case warranties of any documents, agreements or other deliveries, such documents, agreements and deliveries Seller contained herein shall be in form materially true, accurate and substance satisfactory correct as of the Closing Date (subject to the Agentprovisions of Section 8(5));
2. Seller shall be ready, willing and able to deliver title to the Property in each case accordance with the consent terms and conditions of this Agreement;
3. Seller shall have delivered all the Majority Lenders documents and other items required pursuant to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) 11 hereof:
(a) This Agreement , and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed all other covenants, undertakings and obligations, 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 the Seller at or prior to the Closing;
4. Purchaser shall have received at Closing a title policy for the Property with all endorsements required by this Agreement, an updated ALTA survey, the Lease, estoppel certificates in form reasonably acceptable to Seller and a subordination, non-disturbance and attornment agreement substantially in the form attached hereto as Exhibit “D” (“SNDA”), it being agreed and understood that in no event shall Seller’s failure to deliver any estoppel certificate or SNDA be deemed a default by Seller nor shall any such Loan Party before failure or on such delay give Purchaser any right whatsoever to fail to close this transaction as described herein in the manner and at the time otherwise prescribed by this Agreement;
5. As of the Closing Date, Guarantor under the Lease for the Property, shall have an S&P credit rating of higher than “A”;
6. All material consents and approvals by any Governmental Authority and parties to agreements to which Seller is a party or by which Seller’s assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof or other evidence satisfactory thereof shall have been delivered to Purchaser at or prior to the Closing;
7. No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Closing which prohibits the transfer of the Property or the consummation of any other transaction contemplated hereby;
8. On or prior to the Closing Date, (A) Seller shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the 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, (B) Seller shall not have admitted in writing an inability to pay its debts as they mature, (C) Seller shall not have made a general assignment for the benefit of creditors, (D) Seller shall not have been adjudicated as bankrupt or insolvent, or had a petition for reorganization granted with respect to Seller, (E) Seller 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 it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date; and
9. The Current Lease shall have been terminated concurrently with the Closing.
(b2) All Seller’s obligation under this Agreement to sell the Property to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10(3):
1. The representations and warranties made hereunder and in the other Loan Documents of Purchaser contained herein shall be true materially true, accurate and correct as of the Closing Date as if made on such date (both immediately prior toDate;
2. Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 12 hereof and shall have performed all other covenants, undertakings and obligations, 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 complied with all conditions required by this Agreement to be made on such date performed or the Letters of Credit to be issued complied with by Purchaser at 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 Closing;
3. All consents and complete copy of a resolution adopted approvals 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 any Governmental Authority and performance of this Agreement and the other Loan Documents parties to agreements to which it Purchaser is a party and or by which Purchaser’s assets are 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 Seller at or prior to the Agent such additional instruments and documents Closing;
4. No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Agent Closing which prohibits the transfer of the Property or the consummation of any other transaction contemplated hereby;
5. On or prior to the Closing Date, (A) Purchaser shall not have applied for or consented to the appointment of a receiver, receiver-manager, trustee or liquidator for itself or any of its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming assets unless the Borrower's Plan of Reorganization, which same shall have been certified by discharged prior to the Clerk Closing Date, and no such receiver, receiver-manager, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Closing Date, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of the Bankruptcy Court as having been duly entered. Such order creditors, (D) Purchaser shall not have been reversed, modified, amended, vacatedadjudicated as bankrupt or insolvent, or stayedhad a petition for reorganization granted with respect to Purchaser, and(E) Purchaser 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 it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws 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 terminated prior to the waiver thereof Closing Date;
6. Purchaser’s Designee and its affiliates, Inland Western Markham Limited Partnership and Inland Western Markham DST, shall have been consented to by entered into that certain Canadian Tax Monitoring And Indemnity Agreement with Amex Canada Inc. in the Agentform attached hereto as Exhibit “E”; and
7. Purchaser’s Affiliate, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date of the Plan of Reorganization Inland Western Retail Real Estate Trust, Inc., shall have occurred or shall be scheduled executed and delivered the Indemnification Guaranty in the form attached as an exhibit to occur but for the initial extension of credit under the Post-Confirmation Agreement on or after the Consummation DateLease (as defined below).
(t3) After giving effect to In the making of event that any loans under this Agreement (including the rollover of Loans under the DIP Loan Agreement)condition contained in Section 10(1) or 10(2) is not satisfied, 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 party entitled to the satisfaction of such Lendercondition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, or (ii) if such failure is by Seller and is specific to a Property, Purchaser may delete such Property from this Agreement and receive credit against the decision of such Lender to execute and deliver Purchase Price in an amount equal to the Agent an executed counterpart portion of the Purchase Price allocated to such Property or, (iii) if such failures relate to more than one of the Property if such failures were by Seller, Purchaser may terminate this Agreement was made Agreement, or (iv) if such failure is by Purchaser or Seller and is not specific to a Property, terminate this Agreement. Nothing contained in this Section 10(3) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such Lender independently and without reliance on the Agent or any other Lender as party is expressly entitled to the satisfaction of any such condition precedent set forth as provided in Section 10(1) or 10(2). The provisions of this Section 10.1, and (iii10(3) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lendershall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust 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:
(x) Xxxxxxxxx xxxxxxxxxx xxxx xxx xxx xxxx xn 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 xxx xxxxxxxtions 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
Samples: 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 or Section 13.2(a)(ii) hereof:
(a) This Agreement and Seller's obligations to sell the other Loan Documents have been executed Interest to Buyer shall be subject to the performance by each party thereto and each Loan Party shall have performed and complied with Buyer of all covenants, of its agreements and conditions contained herein and in the other Loan Documents which are required hereunder to be performed on or complied with by such Loan Party before or on such prior to the Closing DateDate including the obligation of Buyer to make the payments set forth in Section 1.2 hereof.
(b) All representations and warranties made hereunder and in Buyer's obligations to purchase the other Loan Documents Interest from Seller shall be true and correct as subject to the performance by Seller of all of its agreements hereunder to be performed on or prior to the Closing Date as if and to the satisfaction of the following conditions:
(1) Execution and delivery by Seller to Buyer of the Xxxx of Sale;
(2) Arrangements satisfactory to Buyer shall have been made with respect to the registration of Buyer's Interest with the FAA;
(3) Seller shall present Buyer with evidence of Seller's title to the Aircraft to the extent of the Interest subject only to the rights of the Additional Interest Owners; and,
(4) Executive Jet Aviation, Inc., a Delaware corporation and affiliate of Seller ("EJA"), shall have agreed to manage the Aircraft on such date behalf of Buyer and the Additional Interest Owners pursuant to the terms of a management agreement typically used by EJA (both immediately prior tothe "Management Agreement") and shall have agreed to administer an interchange program among Buyer, the Additional Interest Owners and after giving effect tocertain owners of other aircraft pursuant to the terms of a master interchange agreement (the "Master Interchange Agreement"), such extension copies of credit)which agreements Buyer acknowledges have been previously delivered to and reviewed by Buyer.
(c) No Default or Event of Default shall exist on Buyer agrees that, at such time as Seller and EJA mutually agree that the Closing DateAircraft is operational, or would exist after giving effect in good working order and ready to the Loans use, Buyer will execute and deliver 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 Seller and the Lenders shall have received such opinions of counsel (concerningEJA, among other thingsan Aircraft Acceptance Form, 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 Owner's Agreement, Master Interchange Agreement and Management Agreement in the Agent shall have received evidenceforms previously delivered to and reviewed by Buyer, 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 mutual agreement. Buyer hereby specifically appoints EJA as Buyer's agent to accept delivery of the Aircraft. Buyer agrees not to unreasonably withhold or delay its acceptance of the Aircraft. Buyer hereby agrees to execute and at all times since a date prior to deliver the Aircraft Acceptance Form within five (5) days from 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 hereinaboveagreement, and (D) as further agrees to the incumbency indemnify 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 hold Seller harmless from 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 against any and all applicable lawsclaims, statutescharges, rules and regulations costs or expenses arising out of or relating to the conduct Buyer's failure to so execute 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 deliver 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 AgentAircraft Acceptance Form. The acceptance by the Borrower of any Loans made or Letters of Credit issued on the Closing Date transaction contemplated hereunder shall be deemed to commence, and the Management Agreement, Owner's Agreement, Master Interchange Agreement and other Operative Documents shall be a representation and warranty made by the Borrower to the effect that all dated, as of the conditions precedent to commencement date specified on the making of such Loans or Aircraft Acceptance Form (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"Commencement Date").
Appears in 1 contract
Conditions Precedent to Closing. Date This 5.1 Conditions to Obligations of Westfield LP and WMS LLC. The obligation of Westfield LP and WMS LLC to consummate the transactions contemplated by this Agreement shall become effective at such time as is subject to the satisfaction (or waiver by Westfield LP) of the following conditions precedent having been satisfied (in a manner satisfactory addition to the Agent (and Westfield LP’s right to terminate this Agreement as provided in the case Section 6.1 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:this Agreement):
(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 BPFH and BPFH LLC set forth in the other Loan Documents Article II shall be true and correct as of the Closing Date as if though made on and as of the Closing Date (except (x) to the extent such date (both immediately prior torepresentations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such date, and after giving effect to, such extension (y) for changes contemplated by this Agreement).
(b) Each of credit)BPFH and BPFH LLC shall have performed or complied in all material respects with the agreements and covenants required to be performed or complied with by it under this Agreement on or prior to the Closing.
(c) No Default BPFH shall have delivered to Westfield LP a certificate to the effect that each of the conditions specified in clauses (a), (b) and (g) of this Section 5.1 is satisfied in all respects.
(d) BPFH shall have delivered (or Event caused to be delivered) all items required under Section 1.4(b) to be received by Westfield LP.
(e) Westfield LP shall have received $35.0 million in proceeds from one or more financings, whether through its issuance of Default shall exist on debt and/or equity, in order to enable Westfield LP to make the Closing DateDate Payment at the Closing.
(f) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or would exist entered any notice, order, executive order, stay, decree, judgment, advisory opinion or injunction (preliminary or permanent) or statute, rule or regulation which has the effect of either (i) making illegal or otherwise prohibiting consummation of the transactions contemplated by this Agreement or (ii) to the effect that BPFH LLC and/or BPFH are to be treated as “under common control” with Westfield LP for purposes of Section 414(c) of the Code determined by substituting “50%” for “80%” for purposes of determining all ownership thresholds under the applicable Treasury Regulations 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 this Agreement.
(g) The Agent and the Lenders There shall have had an opportunity, if they so choose, not be instituted or pending any action or proceeding by any Governmental Entity (i) seeking to examine the books of account and other records and files prevent consummation of the Loan transactions contemplated by, or the performance by the Parties and of their respective obligations under, this Agreement or (ii) seeking to make copies thereofcause the transactions contemplated by, and or the performance by the Parties of their respective obligations under, this Agreement 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 respectsbe rescinded following consummation.
(h) All proceedings taken BPFH shall have delivered (or caused to be delivered) such certified organizational documents and certificates as to the incumbency of officers and/or managers and the adoption of authorizing resolutions as Westfield LP shall reasonably request 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 AgentClosing.
(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
Samples: Redemption Agreement
Conditions Precedent to Closing. 12.1 The obligations of Contributor to deliver title to the Real Property and to perform the other covenants and obligations to be performed by Contributor on 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 Contributor):
(a) This Agreement The representations and warranties made by MCRLP and Xxxx-Xxxx herein shall be true and correct in all material respects with the other Loan Documents same force and effect as though such representations and warranties had been made on and as of the Closing Date; provided, however, that a failure of any representations or warranties to be true and correct in all material respects shall not give rise to a claim by Contributor hereunder so long as such matters do not have been a material adverse effect on the transactions contemplated herein.
(b) MCRLP and Xxxx-Xxxx shall have executed by each party thereto and each Loan Party delivered to Contributor all of the documents provided herein for said delivery.
(c) Intentionally Deleted. 269
(d) Xxxx-Xxxx and MCRLP shall have performed all covenants and obligations undertaken by Xxxx-Xxxx and MCRLP herein in all material respects and complied with all covenants, agreements and material conditions contained herein and in the other Loan Documents which are required by this Agreement to be performed or complied with by them on or before the Closing Date.
12.2 The obligations of Xxxx-Xxxx and MCRLP to accept title to the Property and Xxxx-Xxxx'x and MCRLP's obligation to perform the other covenants and obligations to be performed by Xxxx-Xxxx and MCRLP on the Closing Date shall be subject to the following conditions (all or any of which may be waived, in whole or in part, by Xxxx-Xxxx or MCRLP):
(a) Subject to Section 5.5(a) the representations and warranties made by Contributor herein shall be true and correct in all material respects with the same force and effect as though such Loan Party representations and warranties had been made on and as of the Closing Date. For the purposes of the Closing condition described in this Section 12.2(a), any limitation to the knowledge, best knowledge, or actual knowledge in any representation, warranty, covenant or agreement made by Contributor herein shall be inapplicable.
(b) Contributor shall have performed all covenants and obligations undertaken by Contributor herein in all respects and complied with all conditions required by this Agreement to be performed or complied with by it on or before or on such 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 or Event of Default shall exist on The Title Company is unconditionally prepared to issue to MCRLP a Title Policy meeting 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 daterequirements set forth in Section 4 hereof for an "insurable title".
(d) The Agent and the Lenders Real Property 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 counselcompliance with all Environmental Laws.
(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 1 contract
Samples: Contribution and Exchange Agreement (Mack Cali Realty Corp)
Conditions Precedent to Closing. Date This Agreement 6.1 The obligation of the Purchaser to complete the purchase of the Shares shall become effective at such time as be subject to the Vendor providing the Purchaser with the following conditions precedent having been satisfied in a manner satisfactory to the Agent (and in the case of any documents, agreements on 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) hereofbefore Closing:
(a) This Agreement A certified copy of resolutions of the Directors of the Company authorizing the transfer of the Shares from the Vendors to the Purchaser, the registration of the Shares in the name of the Purchaser 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 issuance of a share certificate in the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.name of the Purchaser;
(b) All representations and warranties made hereunder and Share certificates representing the Shares issued in the other Loan Documents shall be true and correct as name of the Closing Date as if made on Vendors accompanied by a duly executed Irrevocable Power of Attorney to transfer such date (both immediately prior to, and after giving effect to, such extension of credit).share;
(c) No Default or Event A share certificate registered in the name of Default shall exist on the Closing DatePurchaser, or would exist after giving effect to signed by the Loans to be made on such date or President of the Letters of Credit to be issued or Company, representing the Credit Support to be provided on such date.Shares; and
(d) The Agent corporate seal and the Lenders shall have received such opinions of counsel (concerning, among other things, entry minute books of the order confirming the Plan of Reorganization and proper notice having been given) Company.
6.2 The conditions precedent set forth in subparagraph 6.1 are 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 exclusive benefit of the Agent Purchaser and may be waived by the Attorney Costs incurred Purchaser in connection with any writing, in whole or in part, on or before Closing. Any such waiver by the Purchaser shall not prejudice or affect the rights 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, Purchaser 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 respect of the Loan Parties warranties 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 representations of the certificate or articles of incorporation or other constitutive documents, Vendor set forth 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 paragraph 1 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 shall survive Closing.
6.3 The obligation of the last amendment thereto shown on Vendors to complete the certificate sale of good standing furnished hereinabove, and (D) as the Shares shall be subject to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement Purchaser providing the Vendors with the following on 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.before Closing:
(ja) The Agent shall have received certificates A certified copy of good standing, existence or its equivalent with respect to each Loan Party certified as of a recent date by the appropriate Governmental Authorities resolutions 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 Director 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 Purchaser authorizing the issuance of all Letters the Purchaser Shares to the Vendors in accordance with paragraph 4.1 hereof and appointing Xxxxxx Xxx and Xxxx Xxxxxx as directors of Credit to the Purchaser; and
(b) Share certificates representing the Purchaser Shares issued in the name of the Vendors.
6.4 The conditions precedent set forth in subparagraph 6.3 are for the exclusive benefit of the Vendors and may be issued (including waived by the Existing Letters of Credit)Vendors in writing, in each case whole or in part, on or before Closing. Any such waiver by the date of and immediately subsequent to Vendors shall not prejudice or affect the "Effective Date" rights of the Borrower's Plan Vendors in respect of Reorganization, the Loan Parties warranties and representations of the Purchaser set forth in paragraph 2 of this Agreement which shall have minimum Combined Availability of at least $25,000,000survive Closing.
(u) The Borrower's Plan of Reorganization 6.5 It is mutually understood and agreed by and between 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 that the terms of any Debt of the Loan Parties shall this Agreement will be satisfactory subject 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 representations and warranties of the Vendors and Purchaser made in or pursuant to the making of such Loans or the issuance of such Letters of Credit have been satisfied, this Agreement being true and correct in all material respects at Closing and with the same effect as delivery to the Agent if made at 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 LenderClosing.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as The closing of the Transaction will be subject to the satisfaction of the following conditions precedent having been satisfied (in a manner satisfactory addition to the Agent (and any conditions precedent identified in the case Formal Agreement (as that term is hereinafter defined)) (the “Conditions Precedent”): The parties shall have agreed upon the terms and conditions of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be a formal agreement in form and substance satisfactory to respect of the AgentTransaction (the “Formal Agreement”), which Formal Agreement shall memorialize the provisions of this letter agreement and include industry-standard terms and conditions in each case with the consent respect of the Majority Lenders to Transaction. For greater certainty, the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Formal 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 will contain representations and warranties made hereunder and in customary to transactions like 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 therebyTransaction, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreementlimitation, the Agent shall have received evidence, in form, scope, representations and substance, reasonably satisfactory to the Agent, of all insurance coverage as required warranties 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.
Corporation (i) The Agent shall have received a copy as to the accuracy and completeness of the certificate or articles of incorporation or other constitutive documentsCorporation's internally generated financial statements, 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 dateSeptember 30, 2018, (ii) disclosure of all the Corporation's material contracts, commitments and liabilities, direct or contingent; a certificate (iii) the physical condition, suitability, ownership and absence of liens, claims and other adverse interests with respect to the Corporation's assets; (iv) issuance and status of the Secretary Purchased Shares; (e) the absence 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 liabilities with respect to the date of the resolution described in item (B) below, (B) that attached thereto is a true Corporation and complete copy of a resolution adopted by such Loan Party's Board of Directors (or liabilities incurred in the case ordinary course 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 business since the date of latest audited financial statements; (f) 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 absence 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 condition (financial or otherwise), business, operations, assets, properties, liabilities, profits, assets or prospects or financial position of the Loan Parties as determined by Corporation; (g) the Agent absence of pending or threatened litigation, claims, investigations or other matters affecting the Transaction; (h) the Corporation's compliance with laws and regulations applicable to its business and obtaining all licenses and permits required for its business; and (i) the due incorporation, organization, valid existence, good standing and capitalization of the Corporation. The parties hereby covenant and agree to diligently pursue good faith negotiation of the Formal Agreement. Each of the Purchaser and the Majority Lenders Corporation shall be satisfied, in their its sole discretion.
(l) The Lenders shall be fully satisfied , with the compliance by results of its due diligence investigations in respect of the Loan Parties with Transaction. The holders of the Corporation’s Series A Preferred Stock (the “Preferred A Holders”) and the holders of the Corporation’s common stock shall have executed and delivered to and in favor of the Corporation and the Purchaser any and all applicable lawsconsents to, statutesand waivers in respect of, 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 Transaction as mandated 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 Second Amended and Restated Articles of such LenderIncorporation of the Corporation (the “Articles of Incorporation”), (ii) the decision of such Lender to execute Series A Convertible Preferred Stock Purchase Agreement between the Corporation and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on Preferred A Holders (the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1“Preferred A SPA”), and (iii) the Second Amended and Restated Shareholder’s Agreement, such consent to include, inter alia, (x) consent to the composition of the Board (as that term is hereinafter defined), (y) consent to the issuance of the Purchased Shares to the Purchaser, and (z) a waiver of the preemptive purchase rights set forth in the Rights Agreement. The boards of directors of each of the Purchaser and the Corporation shall have approved the Transaction. Closing Date. The closing date of the Transaction (the “Closing Date”) shall be the closing date specified in the Formal Agreement; provided, however, that either party shall be entitled, in its sole discretion, to terminate this letter agreement in the event that the Formal Agreement has not been executed and delivered on or before December 31, 2018. In the event that the Formal Agreement has not been executed and delivered prior to the due date for payment of the First Guaranteed Payment, the Purchaser shall nonetheless make the First Guaranteed Payment ($3,450,000) when due. In the event of the termination of this letter agreement after payment of the First Guaranteed Payment (otherwise than by operation of the execution and delivery of the Formal Agreement), at the Purchaser’s sole option, (x) the First Guaranteed Payment shall be repayable by the Corporation, without interest, within 360 days of the date of termination of this letter agreement (unless the First Incremental Payment is due and payable on an earlier date pursuant to paragraph 2(f) of this letter agreement), or (y) in full and final satisfaction of the Corporation’s obligation to repay the First Incremental Payment, the Corporation shall issue to the Purchaser that number of common shares in the capital of the Corporation equal to 20% of the issued and outstanding equity securities in the capital of the Corporation (on a post-issuance basis) calculated as at the date of this letter agreement. Board Membership & Executive Management Participation. From and after the Closing Date and for so long as the Purchaser is the registered and beneficial owner of not less than fifty-one percent (51%) of the issued and outstanding equity securities in the capital of the Corporation, the size of the Corporation’s Board of Directors (the “Board”) shall be set at seven (7) composed of (i) the CEO of the Corporation, (ii) one officer of the Corporation (iii) the CEO of Purchaser, one appointee of Series A Holders and three independent directors. Currently the Board of Directors is composed of Xxxxxxx X. Xxxxxx, Xx., Xxxxxx X. Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxx Xxxxxxx, (Series A), Xxxxxx Xxxxxxxx and Xxxxxx Xxxxxxx, and one more independent director. The term of service is two years and board seats are staggered. The Corporation shall reimburse directors for reasonable expenses associated with travel in attending Board meetings. The Corporation shall also tender a stipend or other remuneration to the three independent directors, in such amount(s) as is customary in the industry. The Corporation will maintain director and officer liability insurance with recognized carriers with coverage and in amounts satisfactory to the Purchaser. Upon execution and delivery of this letter agreement, for throughout the currency of this letter agreement, one representative of Corporation shall be invited to attend each and every meeting of the board of directors of the Purchaser as an “observer”. Purchaser First Refusal and Co-Sale Rights. Purchaser will have the right to purchase any shares that holders propose to sell or transfer to any third party (other than Permitted Transfers as defined by Amended and Restated Shareholder Agreement). This right may be exercised if Corporation does not elect to purchase all documents sent of the transferred shares. Investors that do not exercise their rights of first refusal will have the right to include their pro rata share of Common (on an as-if-converted basis) in any such Lender for approvalsale by a Founder. Shareholders. Purchaser shall be required to execute a shareholder agreement. Restrictive Rights. Purchaser will not be able to transfer its shares except pursuant to Shareholder Agreement - Permitted transfers: (i) estate purposes; (ii) death; (iii) SEC-defined Affiliates; (iv) entities managing the beneficial interests; and (v) sale of substantially all of the assets or stock of Corporation. Pre-Closing Corporation Operation. Commencing on the date hereof and ending on the later of the Closing Date or December 31, consent or satisfaction were acceptable to such Lender.2018:
Appears in 1 contract
Samples: Binding Letter of Intent (Generex Biotechnology 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 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) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Borrower and the Investment Manager and (ii) Xxxxxxx and Xxxxxx 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
Samples: Revolving Credit and Security Agreement (TPG Specialty Lending, Inc.)
Conditions Precedent to Closing. Date This 14.1 The obligation of Purchaser to purchase the Project pursuant to the provisions of this Agreement shall become effective at such time as be subject to the following conditions precedent having been satisfied (all or any of which may be 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)writing, 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 Purchaser):
(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 and of Seller in the other Loan Documents this Agreement shall be true and correct and the covenants and agreements of Seller contained herein shall have been complied with as of the Closing Date as if made on such date of Closing;
(both immediately prior to, b) Seller shall deliver the documents described in Articles 5 and after giving effect to, such extension 7 of credit).this Agreement;
(c) No Default or Event of Default There shall exist on have been no material changes in the Closing Date, or would exist after giving effect zoning laws and regulations applicable 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.Project;
(d) The Agent and Subject to the Lenders terms of Section 7.1(j), Seller shall have received such opinions obtained an estoppel certificate from tenants each of counsel (concerningoccupying the Property's leased space under the Tenant Leases, 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 substantially in a formthe form annexed hereto as Exhibit M, 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.
setting forth that (i) The Agent shall have received a copy of the certificate there are no defaults thereunder by landlord 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) belowtenant, (Bii) that attached thereto is a true their respective leases are valid, unmodified 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, (Ciii) that all rent and additional rent has been paid through the month of Closing and (iv) such Loan Party's certificate or articles of incorporation or other constitutive documents have not been amended since matters as are set forth in Exhibit M annexed hereto;
(e) Seller shall deliver title to the date of the last amendment thereto shown on the certificate of good standing furnished hereinaboveProperty as provided in Article 5, and (D) as to the incumbency Purchaser shall have obtained a Title Policy 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 Survey corresponding thereto and signature of its Secretaryconfirming same.
(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 14.2 If 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 closing set forth herein or any other covenant or closing obligation of such Loans or the issuance of such Letters of Credit Seller shall not have been satisfied, complied 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, then, in such event, Purchaser shall have the right, in addition to such effect. Execution and delivery any other rights or remedies available to the Agent by a Lender of a counterpart of Purchaser under this Agreement or in equity or at law, to rescind this transaction in which event the parties shall be deemed confirmation by such Lender that (i) all conditions precedent relieved and released from any further obligations to each other or Purchaser may close the transaction 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 Lenderaccordance with its terms.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Universal Health Realty Income Trust)
Conditions Precedent to Closing. Date This (1) Purchaser’s obligation under this Agreement shall become effective at such time as to purchase the Properties is subject to the fulfillment of each of the following conditions precedent having been satisfied in a manner satisfactory conditions, subject, however, to the Agent (provisions of Section 10(3):
1. The representations and in the case warranties of any documents, agreements or other deliveries, such documents, agreements and deliveries Seller contained herein shall be in form materially true, accurate and substance satisfactory correct as of the Closing Date (subject to the Agentprovisions of Section 8(5));
2. Seller shall be ready, willing and able to deliver title to the Properties in each case accordance with the consent terms and conditions of this Agreement;
3. Seller shall have delivered all the Majority Lenders documents and other items required pursuant to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) 11 hereof:
(a) This Agreement , and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed all other covenants, undertakings and obligations, 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 the Seller at or prior to the Closing;
4. Purchaser shall have received at Closing title policies for the Properties with all endorsements required by this Agreement, updated ALTA surveys, the Leases, estoppel certificates in form reasonably acceptable to Seller and subordination, non-disturbance and attornment agreements substantially in the form attached hereto as Exhibit “D” (“SNDA”), it being agreed and understood that no event shall Seller’s failure to deliver any estoppel certificates or SNDA be deemed a default by Seller nor shall any such Loan Party before failure or on delay give Purchaser any right whatsoever to fail to close this transaction as described herein in the manner and at the time otherwise prescribed by this Agreement;
5. As of the Closing Date, there shall be no material reduction in the credit rating of the tenants under the Leases for the Properties (or with respect to the Lease for the AEPC Property, Guarantor) from the date this Agreement is executed. (For the purposes of this Section 10(1)5, “material reduction” means, for tenant TRS, an S&P rating of “A” or below and a Xxxxx’x rating of “Al” or below, and for Guarantor, a Xxxxx’x rating of “A2” or below);
6. All material consents and approvals by any Governmental Authority and parties to agreements to which Seller is a party or by which Seller’s assets are bound that are required with respect to the consummation of the transactions contemplated by this Agreement shall have been obtained and copies thereof or other evidence satisfactory thereof shall have been delivered to Purchaser at or prior to the Closing;
7. No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Closing which prohibits the transfer of the Properties or the consummation of any other transaction contemplated hereby; and
8. On or prior to the Closing Date, (A) Seller shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the 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, (B) Seller shall not have admitted in writing an inability to pay its debts as they mature, (C) Seller shall not have made a general assignment for the benefit of creditors, (D) Seller shall not have been adjudicated as bankrupt or insolvent, or had a petition for reorganization granted with respect to Seller, (E) Seller 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 it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date.
(b2) All Seller’s obligation under this Agreement to sell the Properties to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10(3):
1. The representations and warranties made hereunder and in the other Loan Documents of Purchaser contained herein shall be true materially true, accurate and correct as of the Closing Date as if made on such date (both immediately prior toDate;
2. Purchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 12 hereof and shall have performed all other covenants, undertakings and obligations, 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 complied with all conditions required by this Agreement to be made on such date performed or the Letters of Credit to be issued complied with by Purchaser at 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 Closing;
3. All consents and complete copy of a resolution adopted approvals 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 any Governmental Authority and performance of this Agreement and the other Loan Documents parties to agreements to which it Purchaser is a party and or by which Purchaser’s assets are 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 Seller at or prior to the Agent such additional instruments and documents Closing;
4. No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect as of the Agent Closing which prohibits the transfer of the Properties or the consummation of any other transaction contemplated hereby; and
5. On or prior to the Closing Date, (A) Purchaser shall not have applied for or consented to the appointment of a receiver, trustee or liquidator for itself or any of its counsel reasonably may require or request.
(s) The Bankruptcy Court shall have entered an order confirming assets unless the Borrower's Plan of Reorganization, which 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, (B) Purchaser shall not have admitted in writing an inability to pay its debts as they mature, (C) Purchaser shall not have made a general assignment for the benefit of the Bankruptcy Court as having been duly entered. Such order creditors, (D) Purchaser shall not have been reversed, modified, amended, vacatedadjudicated as bankrupt or insolvent, or stayedhad a petition for reorganization granted with respect to Purchaser, and(E) Purchaser 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 it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws 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.
(w3) The Agent shall have received all documents and instruments, including Uniform Commercial Code financing statements, required by law In the event that any condition contained in Section 10(1) 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 10(2) is not 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 party entitled to the satisfaction of such Lendercondition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement, (ii) if such failure is by Seller and is specific to a Property, Purchaser may delete such Property from this Agreement and receive credit against the decision of such Lender to execute and deliver Purchase Price in an amount equal to the Agent an executed counterpart portion of the Purchase Price allocated to such Property (which includes the applicable Deposit Allocation) or, (iii) if such failures relate to more than one of the Properties if such failures were by Seller, Purchaser may terminate this Agreement was made Agreement, or (iv) if such failure is by Purchaser or Seller and is not specific to a Property, terminate this Agreement. Nothing contained in this Section 10(3) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such Lender independently and without reliance on the Agent or any other Lender as party is expressly entitled to the satisfaction of any such condition precedent set forth as provided in Section 10(1) or 10(2). The provisions of this Section 10.1, and (iii10(3) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lendershall survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Conditions Precedent to Closing. (a) The Partnership's and the REIT's obligations to acquire the applicable Contributor's interest in the applicable Existing Owner in accordance with this Agreement on each Closing Date This Agreement shall become effective at such time as be subject to the satisfaction or waiver of the following conditions precedent having been satisfied in a manner satisfactory on or 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 with the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereofClosing Date:
(ai) This Agreement and all of 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 Contributors' representations and warranties made hereunder in this Agreement shall be true and in correct at Closing, as if made on such date, except (x) to the other Loan Documents extent such representations and warranties speak as of an earlier date, provided that such representations and warranties shall be true and correct as of such earlier date unless the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect or (y) to the extent the failure of such representations and warranties to be true in all respects, individually or in the aggregate, would not have a Material Adverse Effect;
(ii) the Partnership shall have received all the tenant estoppels (and landlord estoppels) described in Section 32 hereof with respect to such stage, each of which shall be substantially in the form attached hereto as EXHIBIT M (all estoppel certificates shall contain information reasonably satisfactory to the Partnership);
(iii) the Contributors shall have performed all material obligations and agreements which they have undertaken to be performed pursuant to this Agreement at or prior to such Closing Date including the delivery of all instruments required to be delivered pursuant to Section 11 hereof;
(iv) the Partnership shall have received from the holder of each Existing Mortgage any consent to the acquisition by the Partnership of the applicable Property required pursuant to the terms of the loan documents executed in connection with such Existing Mortgage, which consent shall impose no terms which are not reasonably acceptable to the Partnership or the REIT, and such holder's confirmation that the holder of such Existing Mortgage is not in default beyond any applicable notice and grace periods that exist under the applicable Existing Mortgage; and
(v) the Partnership shall have received a payoff letter from the holder(s) of the Existing Mortgages, if such Existing Mortgages are scheduled to be repaid on the applicable Closing Date and, in the event such Existing Mortgages shall not be repaid on the applicable Closing Date, a consent to the transaction contemplated hereby, to the extent required.
(b) The Contributors' obligations to transfer the applicable Contributors' interest in the applicable Existing Owner in accordance with this Agreement on each Closing Date shall be subject to the satisfaction or waiver of the following conditions precedent on such Closing Date:
(i) all of the Partnership's and the REIT's representations and warranties made in this Agreement shall be true and correct at Closing, as if made on such date, except (i) to the extent such representations and warranties speak of an earlier date, provided that such representations and warranties shall be true and correct as of such earlier date unless the failure of such representations and warranties to be true and correct would not have an Acquiror Material Adverse Effect or REIT Material Adverse Effect; (both immediately prior toii) to the extent the failure of such representations and warranties to be true in all respects, individually or in the aggregate, would not have an Acquiror Material Adverse Effect or REIT Material Adverse Effect or (iii) any inaccuracy of any representation or warranty of the REIT contained herein which results solely as a result of the merger of the REIT with and after giving effect tointo Keystone Property Trust with Keystone Property Trust being the surviving entity, except as such extension of credit).inaccuracy may have an Acquiror Material Adverse Effect or a REIT Material Adverse Effect;
(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.intentionally omitted;
(diii) The Agent and the Lenders Partnership shall have received such opinions of counsel (concerningprovided the Contributors with evidence, 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 RMIT, Joseph D. Morris and Robert Morris, that one or more investors have xxxxxxed or xxxxxxx xxxx a binding and irrevocable agreement to invest at least $40,000,000 in equity in the AgentREIT, in the Lendersaggregate, and their respective counsel.in accordance with the provisions of the term sheet attached as SCHEDULE 20 hereto;
(eiv) The Borrower the Partnership and the REIT shall have paid performed all fees material obligations and expenses agreements undertaken by such Persons herein to be performed at or prior to such Closing Date; and
(v) the REIT shall have delivered Stockholder Voting Agreements in the form of EXHIBIT I attached hereto to the Contributors from various shareholders who, collectively, represent the votes of shareholders owning in excess of 45% of the Agent and the Attorney Costs incurred in connection with any shares of the Loan Documents and the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter.
REIT Common Stock (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 including any REIT Common Stock issued in connection with the execution of this Agreementtransaction contemplated by SCHEDULE 20 hereto), 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 as 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 Stage I Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable theretotaking into account the REIT Common Stock which will be issued at the Stage I Closing).
(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
Samples: Contribution and Exchange Agreement (Reckson Associates Realty Corp)
Conditions Precedent to Closing. Date This Agreement A. The obligation of Seller to consummate the transactions contemplated herein shall become effective at such time as be subject to the representations and warranties made by Purchaser hereunder being true and correct in all material respects and confirmed in writing on the date of Closing and the performance by Purchaser of all of its obligations under this Agreement.
B. The obligation of Purchaser to consummate the transactions contemplated herein shall be subject to the occurrence, satisfaction or waiver 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:
(a1) This Agreement Seller's Senior Executives (which term shall mean collectively Ned X. Xxxxxx, Xxmex X. Xxxlxxxxx, Xxxxxx X. X. Xxxxxx xxx Robexx X. Xxxxxx) xxall have no actual (without investigation) knowledge of any suit, action, investigation, inquiry or other proceeding by any governmental authority or any other person, pending or threatened, which would have a material adverse effect on the Properties if adversely determined;
(2) If requested by Purchaser, the respective Seller shall deliver to Purchaser on the Closing Date originals or true copies of properly executed letters (or a form letter) (the "Tenant Letter") from Seller to all tenants under the Leases to be dated as of Closing, advising of the change of ownership and the transfer of deposits of such tenants;
(3) All other Loan Documents documents required hereunder for Closing shall have been executed and delivered by each party thereto Seller 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 DatePurchaser.
(b4) All representations and warranties made hereunder and in the other Loan Documents by Seller under this Agreement shall be have remained 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 material respects.
(h) All proceedings taken in connection with C. In 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 event any condition precedent set forth in Paragraph 8.B., is not satisfied in full as of the date scheduled for Closing, as may be extended in accordance with such Section 9, the party in favor of whom such condition precedent is made may, in its sole discretion, (i) waive the condition in writing or (ii) declare this Section 10.1Agreement to be terminated, upon which the Deposit and (iii) all documents sent accrued interest shall be paid to such Lender for approvalthe party entitled thereto and no party shall have any further obligation hereunder. In the event that, consent during the Study Period, any Certificate of Occupancy or satisfaction were acceptable assisted living or nursing care facility license applicable to such Lender.any of the Facilities shall be revoked, suspended, or canceled, or if any certificate of licensure related to the operation of the Glens of Greenville shall be revoked, suspended or canceled, then Purchaser, by notice to Sellers given on or before the end of the Study Period, may terminate this Agreement, whereupon the Deposit shall be refunded to Purchaser; provided, however, that if any such
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sunrise Assisted Living Inc)
Conditions Precedent to Closing. Date This 4.1 Notwithstanding any other provisions of this Agreement to the contrary, all of Purchaser’s duties and obligations under this Agreement, including, but not limited to, its obligation to close, shall become effective at such time as be conditioned upon and subject to the complete satisfaction of the following conditions precedent having been satisfied in a manner satisfactory to precedent, each of which condition is for the Agent (sole benefit of Purchaser and in the case any of which conditions may be waived by Purchaser at 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) hereoftime at Purchaser’s sole election:
(a) This Agreement completion of the matters set forth in Sections 2.1 and 2.3 herein or the expiration of the Feasibility Study Period and the other Loan Documents have been executed exercise by each party thereto and each Loan Party shall have performed and complied with all covenants, agreements and conditions contained herein and in Purchaser of the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.Option;
(b) All representations each and warranties every warranty and representation made hereunder and by Seller or BDA in the other Loan Documents this Agreement shall be true true, correct and correct accurate in all material respects as of the date hereof 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).Date;
(c) No Default Seller and BDA shall timely perform each and every duty, condition, obligation, covenant, and agreement of Seller and BDA contained in this Agreement, including, without limitation, the execution and/or delivery by Seller and BDA to Purchaser of each and every instrument to which either of them is a party referred to herein or Event of Default shall exist on in 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.Annex;
(d) The Agent Purchaser shall have obtained all necessary governmental permits and the Lenders approvals of its site plan, improvements and operations which are capable of being obtained and 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 it that all other necessary permits and approvals can be obtained at no cost to Purchaser, at the Agent, appropriate time from applicable governmental authority and the Lenders, and their respective counsel.Architectural Control Committee of Xxxxxxxx Business & Industry Center; and
(e) Purchaser has determined to its satisfaction that the Property is free and clear of any liens, encumbrances, covenants, conditions and restrictions except for the following:
(i) The Borrower shall have paid all fees defined easements, lot lines, building setback lines and expenses restrictions shown on the Survey provided such easements, lines, and restrictions do not materially interfere with or limit Purchaser’s proposed use of the Agent Property;
(ii) Zoning ordinances in effect provided such ordinances do not materially interfere with or limit Purchaser’s proposed use of the Property;
(iii) Taxes for the year in which the Closing take place (which shall be prorated on a calendar year basis at the Closing);
(iv) Declaration of Covenants, Conditions and Restrictions for Xxxxxxxx Business & Industry Center;
(v) Rights of others in and to the waters or creeks or branches, if any, crossing the Property and the Attorney Costs incurred natural flow thereof, free from diminution or pollution;
(vi) Agreement regarding Wetlands recorded in connection with any Book 1754, Page 368, Xxxx County Registry; and
(vii) Such other exceptions as approved by Purchaser as provided in Article XI. All of the Loan Documents and foregoing items (i) through (vi) are hereinafter referred to as the transactions contemplated thereby, including, without limitation pursuant to the Fee Letter“Permitted Exceptions.”
(f) To There has been no material change in the extent not previously provided under condition of the DIP Loan Agreement, Property since completion of the Agent shall have received evidence, in form, scope, studies and substance, reasonably satisfactory to investigations made by Purchaser during the Agent, of all insurance coverage as required by the AgreementFeasibility Study Period.
(g) The Agent terms and conditions set out in Exhibit B hereto respecting 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 Improvements 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 satisfied 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 provision deemed adequate 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 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 made for satisfying each such supply arrangements.
(r) There shall have been delivered to the Agent such additional instruments and documents as the Agent term 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 condition subsequent to the "Effective Date" of the Borrower's Plan of Reorganization, the Loan Parties shall have minimum Combined Availability of at least $25,000,000Closing.
(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 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 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 be 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 Secretaryhereunder.
(jiv) The Agent shall have received certificates A certificate of good standinga Responsible Officer of the Company, existence or its equivalent with respect to each Loan Party certified dated as of a recent the date by hereof, certifying (i) the appropriate Governmental Authorities accuracy of the state representations and warranties contained herein and (ii) that no event has occurred and is continuing which constitutes a Default or other jurisdiction an Event of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)Default.
(kv) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position Certified copies of the Loan Parties as determined by the Agent all required governmental approvals and the Majority Lenders in their sole discretionauthorizations.
(lvi) 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 Certified copy of the business restated charter and properties bylaws of the Loan PartiesCompany.
(mvii) The Borrower Evidence satisfactory to the Administrative Agent that the Existing Facilities shall have received the proceeds of the Term Debt been terminated and the Agent all amounts outstanding thereunder shall have entered into an Intercreditor Agreement with the administrative agent been paid in full.
(viii) Favorable opinions of counsel for the Term Debt 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 may reasonably request.
(ix) A favorable opinion of King & Spalding LLP, counsel for the Administrative Agent, substantially in the form of Exhibit E hereto.
(nb) The Agent shall Any fees 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 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 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 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 The following shall be true conditions precedent to Purchaser’s obligation to consummate the purchase and correct as of sale transaction contemplated herein (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.“Purchaser’s Conditions Precedent”):
(i) The Agent Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 15(a) or Section 15(b) of this Agreement within the time periods described in said Sections.
(ii) Title Company shall be irrevocably and unconditionally committed to issue, at the Closing, an ALTA Owner’s Policy of title insurance (the “Title Policy”), insuring Purchaser’s fee simple interest in the Real Property, dated the day of the Closing, with liability in the amount of the Purchase Price, subject only to the Permitted Exceptions, together with such endorsements as Purchaser may reasonably require.
(iii) Purchaser shall have received a copy of the certificate or articles of incorporation or other constitutive documentsand approved, 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 at least three (A3) 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 an executed estoppel 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 heretoI hereto dated not later than thirty (30) days prior to the Closing from the Tenant under the Lease, with only those changes to the form which are reasonably requested by the Tenant and required by the Lease and reasonably acceptable to Lender (defined below). Purchaser acknowledges that Seller has received comments from Tenant to the form attached as Exhibit I hereto and has provided those comments to Purchaser for delivery to Lender.
(niv) The Agent KeyBank National Association (“Lender”) shall be satisfied with have approved and funded a loan in the terms and conditions amount of all material Debt (including, without limitation, the Term Debt) and other agreements 65% of the Loan Parties and their Subsidiaries Purchase Price to remain outstanding after finance 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 acquisition 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 AgentProperty. Without limiting the generality of the foregoing, (1) Purchaser shall have received a subordination and non-disturbance agreement (“SNDA”) in the capital structure of form attached hereto as Exhibit J, executed by Tenant with only those changes reasonably requested by the Loan Parties shall be Tenant and required by the Lease and reasonably satisfactory to Lender (Seller will reasonably cooperate with Purchaser in obtaining an SNDA) and (2) Lender shall have obtained an appraisal satisfactory to Lender indicating that the Agent in all respects and the terms of any Debt value of the Loan Parties shall be satisfactory Property equals or exceeds the Purchase Price. Purchaser acknowledges that Seller has received comments from Tenant to the Agentform attached as Exhibit J hereto and has provided those comments to Purchaser for delivery to Lender.
(v) The Agent Each and every representation and warranty of Seller set forth in Section 6 above shall have received results of searches or other evidence reasonably satisfactory to the Agent (be true, complete and correct in each case dated all material respects as of a the 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 DateClosing.
(wvi) The Agent Seller shall not be in default under any, and shall have received all documents and instrumentsotherwise performed in full all, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Agent of its material obligations to be filedperformed by Seller under this Agreement at or prior to the Closing.
(vii) Neither Seller nor Tenant shall have filed (or have had filed against it) any proceeding in bankruptcy, registeredreceivership or any similar proceeding.
(viii) Seller shall have delivered to the Escrow Agent the items described in Section 10.
(ix) No event constituting a “Material Adverse Change” shall have occurred following the Effective Date hereof and prior to the Closing. For purposes of this Agreement, published “Material Adverse Change” shall mean any material and adverse change in the Tenant (including without limitation its financial condition), Lease, or recorded to create or perfect the first priority Liens intended to be created Tenant performance under the Loan Documents and all such documents and instruments shall have been so filedLease, registered, published or recorded to the satisfaction of the Agent. The acceptance as reasonably determined 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 LenderPurchaser.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Gc Net Lease Reit, Inc.)
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
Samples: Purchase and Sale Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Conditions Precedent to Closing. Date This Agreement 7.1 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 Agent purchase and sale transaction contemplated herein (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:“Purchaser’s Conditions Precedent”):
(a) This Agreement The representations and warranties set forth in Section 4 shall be true and correct in all material respects as of the other Loan Documents Closing Date except for breaches thereof which do not in the aggregate have been executed by a material adverse effect on the value of the Real Property or Seller Subsidiary Interest, each party thereto taken as a whole, and each Loan Party Seller shall have duly and substantially performed each and complied with all covenantsevery material covenant, agreements undertaking and conditions contained herein and in the other Loan Documents which are required agreement to be performed or complied with by such Loan Party before or on such Closing DateSellers under this Agreement, including the delivery of the documents described in Sections 9.1 and 9.2 hereof.
(b) All representations The Title Company shall be unconditionally prepared and warranties made hereunder irrevocably committed to issue ALTA extended coverage owner’s policies of title insurance (the “Title Policies”) insuring the interest of each Applicable Seller Subsidiary Entity and Purchaser, as successor by merger to such Applicable Seller Subsidiary Entity, in each Applicable Real Property, dated the Closing Date, with an aggregate liability for each policy of title insurance in the other Loan Documents shall be true and correct as amount of the Closing Date as if made on Purchase Price for the Applicable Subsidiary Entity Interests of the Applicable Seller Subsidiary Entity owning the Applicable Property, in the forms, containing such date (both immediately prior toendorsements, and after giving effect tosubject only to such exceptions as have been reasonably approved by Sellers, such extension of credit)Purchaser and Purchaser’s Lender.
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect 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 Boulder Property, Purchaser shall have received such opinions of counsel at least seven (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given7) 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 days prior to the AgentClosing, 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 an executed Ground Lessor Consent and Estoppel Certificate from the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of lessor under 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 Boulder Ground Lease substantially in the form of Exhibit E hereto.
J-1 attached hereto (nwith such changes thereto reasonably approved by Purchaser and Purchaser’s Initial Lender), dated no more than thirty (30) The Agent shall be satisfied with days prior to the terms and conditions of all material Debt Closing (including, without limitation, the Term Debt“Ground Lessor Estoppel Certificate”) and other agreements (ii) an executed Fee Mortgagee Estoppel Certificate from any mortgagee of fee title to the Loan Parties Boulder Ground Leased Land substantially in the form of Exhibit J-2 attached hereto (with such changes thereto reasonably approved by Purchaser and their Subsidiaries Purchaser’s initial lender), dated no more than thirty (30) days prior to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable theretothe “Fee Mortgagee Estoppel Certificate”).
(od) The Agent Each Seller shall be reasonably satisfied with have formed its Applicable Seller Subsidiary Entity and transferred its Applicable Property to its Applicable Seller Subsidiary Entity in the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwisemanner required under Section 2.1 above.
(pe) The Agent and Concurrently or substantially concurrently with the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals Closing (including, without limitation, consents with respect to each Loan Party and each of its Subsidiariesi) 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.
Merger (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 Merger Agreement) shall be consummated, (ii) SCI shall have been met entered into the Master Lease, and (or iii) SCI and the waiver thereof Sellers shall have been consented to by entered into the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date Subleases. If any of the Plan of Reorganization foregoing Purchaser’s Conditions Precedent are not satisfied with respect to a particular Property or Subsidiary Entity Interests, Purchaser shall have occurred the right at its sole election either to waive the condition in question and proceed with the purchase of such Subsidiary Entity Interests pursuant to all of the other terms of this Agreement or, in the alternative, to terminate this Agreement with respect to such Subsidiary Entity Interests or in its entirety. In the event that Purchaser elects to terminate this Agreement with respect to such Subsidiary Entity Interests as provided in the foregoing sentence, this Agreement shall be scheduled become null and void without further obligation on the part of Purchaser and Seller of such Subsidiary Entity Interests with respect to such Subsidiary Entity Interests. In the event Purchaser elects to terminate this Agreement in its entirety, this Agreement shall become null and void without further obligation on the part of Purchaser and Sellers.
7.2 The obligation of each Seller to consummate the transactions contemplated hereunder 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 are each conditioned on the fulfillment of the following (“Sellers’ Conditions Precedent”) on and as of the Closing Date:
(a) The truth, in all material respects, of each and every representation and warranty made by Purchaser and the Borrower due performance of each and every material covenant, undertaking and agreement to be performed by Purchaser under this Agreement (including, but not limited to, the effect that delivery by Purchaser of the items, and the making of the payments, described in Section 10 below).
(b) Concurrently or substantially concurrently with the Closing (i) the Merger (as defined in the Merger Agreement) shall be consummated and (ii) Purchaser shall have entered into the Master Lease.
(c) The Title Company shall be unconditionally prepared and irrevocably committed to issue ALTA extended coverage leasehold owner’s policies of title insurance insuring SCI’s leasehold estate under the Master Lease and each Seller’s leasehold estate under the Sublease for the Applicable Property, dated the day and time of the Closing, with an aggregate liability for each policy of title insurance in the amount of the Purchase Price for the Applicable Property (or such other amount designated by such Seller), in forms approved by Sellers, and subject only to such exceptions as set forth in the Title Policies. If any of the foregoing Sellers’ Conditions Precedent are not satisfied with respect to a particular Property or Subsidiary Entity Interests, the Seller of such Subsidiary Entity Interests shall have the right at its sole election either to waive the condition in question and proceed with the sale of such Subsidiary Entity Interests pursuant to 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 other terms of this Agreement or, in the alternative, to terminate this Agreement with respect to such Subsidiary Entity Interests or in its entirety. In the event that such Seller elects to terminate this Agreement with respect to such Subsidiary Entity Interests as provided in the foregoing sentence, this Agreement shall be deemed confirmation by become null and void without further obligation on the part of Purchaser and such Lender that (i) all conditions precedent Seller with respect to such Subsidiary Entity Interests. In the event any Seller elects to terminate this Agreement in its entirety, this Section 10.1 have been fulfilled Agreement shall become null and void without further obligation on the part of Purchaser and Sellers.
7.3 Notwithstanding anything to the satisfaction of such Lendercontrary contained herein, (ii) in the decision of such Lender to execute and deliver event that the Merger Agreement is terminated pursuant to the Agent an executed counterpart of terms thereof, this Agreement was made by such Lender independently shall automatically terminate and become null and void without reliance further obligation on the Agent or any other Lender as to the satisfaction part of any condition precedent set forth in this Section 10.1, Purchaser and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderSellers.
Appears in 1 contract
Conditions Precedent to Closing. Date This 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:
1. The shareholders of Capital shall have duly approved and adopted this Agreement in accordance with and as required by law and in accordance with its Articles of Incorporation and Code of Regulations.
2. All necessary governmental and regulatory orders, consents, clearances and approvals and requirements shall become have been secured and satisfied for the consummation of such transactions, including without limitation, those of the Federal Reserve System, the Ohio Division of Financial Institutions, the OCC, the Department of the Treasury, and the Federal Deposit Insurance Corporation to the extent required.
3. Prior to or at the Effective Time, no material investigation by any state or federal agency shall have been threatened or instituted seeking to enjoin or prohibit, or enjoining or prohibiting, the transactions contemplated hereby and no material governmental action or proceeding shall have been threatened or instituted before any court or government body or authority, seeking to enjoin or prohibit, or enjoining or prohibiting, the transactions contemplated hereby other than investigations, actions and proceedings which have been withdrawn prior to or at the Effective Time without material adverse effect to Fifth Third or Capital and other than regularly-scheduled regulatory examinations.
4. Any waiting period mandated by law in respect of the final approval by any applicable Federal or State regulator(s) of the transaction contemplated herein shall have expired.
5. Fifth Third shall have registered its shares of Common Stock to be issued to the Capital shareholders hereunder with the SEC pursuant to the Securities Act of 1933, as amended, 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. The shares of Fifth Third Common Stock to be issued to the Capital shareholders hereunder shall have been authorized for trading on the Nasdaq Stock Market upon official notice of issuance.
B. Conditions to the Obligations of Fifth Third: The obligation of Fifth Third to consummate the transactions provided for herein is subject to the fulfillment at such time as or prior to the Effective Time of each of the following conditions precedent having been satisfied unless waived by Fifth Third in a manner satisfactory writing delivered to Capital which specifically refers to the Agent (condition or conditions being waived:
1. All of the representations and warranties of Capital set forth in the case Section II of any documents, agreements or other deliveries, such documents, agreements and deliveries this Agreement 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 in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This date of this Agreement and at and as of the other Loan Documents have been executed by Closing Date (as hereinafter defined) as if each party thereto such representation and each Loan Party shall have performed warranty was given on and complied with all covenants, agreements and conditions contained herein 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 , except for any such representations and warranties made hereunder as of a specified date, which shall be true and correct in all material respects as of such date, and except for changes permitted pursuant to the terms of this Agreement after the date hereof
2. Capital shall have performed all of the obligations required of it under the terms of this Agreement in all material respects.
3. Wernxx & Xlank, Co., LPA counsel for Capital, shall have delivered an opinion addressed to Fifth Third in substantially the form appended hereto as Appendix A.
4. The aggregate amount of consolidated shareholders' equity (including Common Stock, Additional Paid-In Capital and Retained Earnings and excluding Treasury Stock) of Capital immediately prior to the Effective Time, as shown by and reflected in its books and records of accounts on a consolidated basis in accordance with GAAP, consistently applied, shall not be less than $90,500,000. For purposes of this subparagraph 4 to Section VI.B., (A) any expenses or accruals after the date hereof relating to (i) the adjustments contemplated by Section IV.B.(1) herein, (ii) termination or funding of any of Benefit Plans of Capital, Capital Bank and CBNA Building Company as contemplated herein, (iii) adjustments made to reflect expenses and losses in the other Loan Documents market value of investments held by Capital or Capital Bank, as required by GAAP, including SFAS 115, and (iv) expenses associated with this Agreement and the transactions contemplated herein, shall be excluded for purposes of calculation of Capital's shareholders' equity as contemplated herein.
5. Fifth Third's independent certified public accountants shall have reviewed the unaudited consolidated financial statements of Capital as at the end of the month immediately preceding the Effective Time, as well as the unaudited separate financial statements of Capital Bank and CBNA Building Company as of the same date, performed such other auditing procedures as may be requested by Fifth Third and reported in good faith that they are not aware of any material modifications which would have a material adverse effect on the financial condition of Capital, Capital Bank or CBNA Building Company, on a consolidated basis, that should be made in order for such financial statements to (i) be in conformity with GAAP, consistently applied, excluding the presentation of footnotes, and (ii) accurately state the financial condition and results of operations of Capital, Capital Bank and CBNA Building Company, on a consolidated basis.
6. The receipt of a certificate from Capital, Capital Bank and CBNA Building Company, executed by the chief executive officer and chief financial officer of each, dated the Closing Date, certifying to their best knowledge and belief that: (i) all of the representations and warranties set forth in Section II hereof were true and correct as of the Closing Date date of this Agreement and as if of the Effective Time in all material respects, except for any such representations and warranties made on such date (both immediately prior toas of a specified date, which shall be true and after giving effect to, such extension correct in all material respects as 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.
; and (dii) The Agent it has met and the Lenders shall have received such opinions of counsel (concerning, among other things, entry fully complied in all material respects with all of the order confirming the Plan obligations required 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 it under the DIP Loan Agreement, the Agent shall have received evidence, in form, scope, and substance, reasonably satisfactory to the Agent, terms of all insurance coverage as required by the this Agreement.
(g) 7. The Agent total issued and the Lenders outstanding shares of Capital Common Stock 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 appraisalnot exceed 7,047,556 shares, and the results total number of such examination and audit and appraisal options to purchase Capital Common Stock 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 documentsnot exceed 805,415, in each case amended to date, adjusted for the exercise of each any options which were outstanding as of the Loan Partiesdate of this Agreement and otherwise properly exercised, certified and for the grant and exercise of any Permitted Option Grants after the date of this Agreement. Schedule 1 lists of all presently outstanding options to acquire Capital Common Stock, the holders thereof, the dates of issuance, the vesting schedules and the price per share of such options.
8. With respect to each non-employee director of Capital, Fifth Third shall have either (i) received an executed noncompetetion agreement in the form attached as Appendix E, or (ii) waived the requirement hereof.
9. Fifth Third shall have received an opinion 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 Partiescounsel to Fifth Third, 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 Effective Date, to the effect that, on the date basis of facts, representations and assumptions set forth in such certificate opinion, (i) the Merger constitutes a "reorganization" within the meaning of Section 368 of the Code. In rendering its opinion, counsel to Fifth Third may require and at all times since a date prior rely upon representations contained in letters from Capital and Fifth Third.
10. There shall have been no exercises of options to purchase Capital Common Stock between 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 SecretaryEffective Time.
(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 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) hereofPurchaser's obligation under this Agreement to purchase the Premises is subject to the fulfillment of each of the following conditions:
(aA) This Agreement All of the representations and warranties of Seller contained in this Agreement, other than the To Be Updated Representations, shall be true, accurate and correct as if restated on and as of the Closing Date.
(B) Seller shall update the To Be Updated Representations as of the Closing Date to reflect the then present state of facts underlying the To Be Updated Representations (as updated, the "Updated Representations"). A difference between the To Be Updated Representations and the Updated Representations shall not in and of itself constitute a breach of a representation by Seller. Notwithstanding the immediately preceding sentence, it shall be a condition of Purchaser's obligation under this Agreement to purchase the Premises that the Updated Representations do not differ from the To Be Updated Representations, except that the facts underlying the representations contained in Paragraphs D and F of Section 7(a)(i) may be updated as of the Closing Date, respectively, to reflect (I) any New Leases or Lease amendments or modifications permitted pursuant to Section 9, and (II) any defaults by any tenants under the Leases (subject to the provisions of Section 7(a)(ii));
(ii) Seller shall be ready, willing and able to deliver title to the Premises in accordance with the terms and conditions of this Agreement; and
(iii) Seller shall have delivered all the documents and other Loan Documents have been executed by each party thereto items required pursuant to Section 3, and each Loan Party shall have performed all other covenants, undertakings and obligations, 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 the Seller at or on such Closing Dateprior to the Closing.
(biv) 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 toThe Title Company is willing to insure, and after giving effect towithout conditions, such extension of credit).
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect fee simple title subject only to the Loans to be made on such date Permitted Exceptions at filed or the Letters of Credit to be issued promulgated rates without additional premiums 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 Agentendorsements.
(v) The Agent In accordance with Section 3(f), either (A) the Mezzanine Lender or Seller shall be ready, willing and able to provide Mezzanine Financing to Purchaser, or (B) Seller shall have received results of searches or other evidence reasonably satisfactory to disapproved 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 terms 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 LenderCommitment.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement shall become effective The obligations of Buyer to consummate the Closing of the Equity Transfer and pay the Purchase Price to Seller pursuant to Section 3.3 are subject to the satisfaction (as determined at such time as Buyer’s reasonable discretion) of each of the following conditions precedent having been satisfied in a manner satisfactory to the Agent Closing (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“CPs”), unless otherwise expressly waived by Buyer 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) hereofwriting:
(a) This Agreement All the representations and warranties of Seller set forth hereunder are true, complete and not misleading in any material aspects when made, throughout the Interim Period, and on and as of the Closing Date with the same effect as if such representations and warranties were made on and as of the Closing Date, and Seller has signed and issued a Closing Memorandum to Buyer certifying that all such representations and warranties of Seller are all true, complete and not misleading in any material aspects as of the Closing Date;
(b) Seller has, and has caused Xx. Xx, the Target Company or Seller’s other Loan Documents have been executed by each party thereto Affiliates and each Loan Party shall have Related Parties to have, performed and complied with all covenantsagreements, agreements obligations and conditions covenants contained herein and in the other Loan Transaction Documents which that are required to be performed or complied with by such Loan Party Seller or any of the aforementioned parties on or before or on such 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 or Event The Target Company has received all the third party consents and has issued all the notices to relevant third parties as required for the consummation of Default shall exist the transactions contemplated hereunder, including without limitation, consents from the banks, guarantees, mortgagees and other relevant counter parties under those Material Contracts that contain “change of control” clauses set forth 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.Schedule 7.1(c);
(d) The Agent Target Company and Seller have received and delivered to Buyer all regulatory approvals and filing certificates legally required for the consummation of the Equity Transfer, including (1) the Registration Voucher issued by competent level of MOFCOM indicating Buyer’s legal title to the Equity Interest and the Lenders shall have received such opinions of counsel (concerning, among other things, entry approval or registration of the order confirming Amended AOA; (2) the Plan New Business License issued by competent level of Reorganization SAIC and proper notice having applicable SAIC registration records reflecting Buyer as a 75% shareholder of the Target Company; (3) other registration records issued by SAIC evidencing the Amended AOA has been given) for the Loan Parties as the Agent or any Lender shall request, each such opinion to be in a form, scopeapproved and effective, and substance reasonably satisfactory (4) the SAFE Approval issued by competent level of SAFE with regard to the Agent, the Lenders, receipt and their respective counsel.settlement of foreign exchange payment for equity transfer pursuant to Section 4.6;
(e) The Borrower shall Parties have paid all fees executed, and expenses of have caused the Agent Target Company or other relevant Affiliates and Related Parties to execute, this Agreement, the Attorney Costs incurred in connection with Escrow Agreement, the Shareholders Agreement, the Amended AOA, the Share Charge Deed, the Employment Contract and any of other Transaction Documents related to the Loan Documents and the transactions contemplated thereby, including, without limitation Equity Transfer as required to be executed pursuant to this Agreement, and have delivered to the Fee Letter.other Party executed originals of such documents;
(f) To The Parties have agreed on the extent not previously provided under substance and form of the DIP Loan OEM and Licensing Agreement, the Agent shall have received evidenceTechnology License Agreement, in formthe Maximal Product Supply Agreement, scopethe HY Component Supply Agreement, the Maximal Component Supply Agreement, the Technical Service Agreement, and substance, reasonably satisfactory any other Transaction Documents related to the Agent, Equity Transfer the form of all insurance coverage as which are required to be agreed to by the Parties pursuant to this Agreement.;
(g) The Agent and Prior to the Lenders shall have had an opportunityClosing Date, if they so choosethere has been no Material Adverse Change to the Target Company, to examine or the books of account and other records and files Assets or operation of the Loan Parties and to make copies thereofTarget Company, 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 including but not limited to the Agent in all respects.financial condition, operating results, business prospects, customer relations, supplier relations and employees of the Target Company;
(h) All proceedings taken in connection 25% equity interest of the Target Company is owned by a shareholder consented by Buyer, as duly registered with the execution of this AgreementSAIC and other applicable authorities, all other Loan Documents and all documents shareholders of such 25% shareholder have entered into a Share Charge Deed with Buyer and papers relating thereto shall be satisfactory in formhave set up, scope, effectuated and substance registered (if so required) the Share Charge for the benefit of Buyer according to the Agent.Parties’ agreement;
(i) The Agent shall key assets of Samuk listed in Schedule 6.3 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 been transferred to the date of Target Company or 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 Sub pursuant 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.Section 6.3;
(j) The Agent shall Shenzhen Maximal and Shanghai Maximal have received certificates of good standing, existence or its equivalent with respect been carved out from the Target Company and become independent dealers separate from the Target Company pursuant 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).Section 6.4;
(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 Seller and the Majority Lenders Target Company have signed and delivered amended intercompany loan agreements in their sole discretion.a form reasonably satisfactory to Buyer pursuant to Section 6.5;
(l) The Lenders shall be fully satisfied with Seller has partially removed the compliance by Related and Third Party Guarantees and lowered the Loan Parties with total amount of the Related and Third Party Guarantees to or under RMB321,800,000 pursuant to Section 6.6, without incurring any and all applicable lawscosts, statutes, rules and regulations relating losses or remaining or additional liability to the conduct and operations of the business and properties of the Loan Parties.Target Company or Buyer;
(m) The Borrower shall have received Target Company has implemented the proceeds of the Term Debt Compliance Measures in a manner and the Agent shall have entered into to an Intercreditor Agreement with the administrative agent for the Term Debt substantially extent satisfactory to Buyer, as determined in the form of Exhibit E hereto.Buyer’s reasonable discretion after an audit, pursuant to Section 6.7;
(n) The Agent shall be satisfied with the terms and conditions of all material Debt (including, without limitation, the Term DebtBuyer has obtained approval from its bank(s) and or other agreements financing partners to support its payment 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).total amount of Purchase Price;
(o) The Agent shall be reasonably satisfied with Target Company’s working capital has been adjusted and maintained at the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwise.normal level as defined in Section 6.1(a)(iv);
(p) The Agent All obligations and covenants in respect of the Lenders shall have received evidence reasonably satisfactory Entity Classification Elections pursuant 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 SubsidiariesSection 6.8(c) 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.satisfied;
(q) The terms of all sourcing arrangements among the Loan Parties Seller has signed and their suppliers shall have been fully disclosed delivered to the Agent and the Lenders and there shall have been a resolution satisfactory Buyer Seller’s Guarantee Letter pursuant to the Agent of any liens arising from any such supply arrangements.Section 6.14; and
(r) There shall Any other undertakings of Seller or Xx. Xx made in relation to the Equity Transfer that are required to be performed prior to Closing (including without limitatiosn, those pre-Closing undertakings in the Undertaking Letter) have been delivered to the Agent such additional instruments fully performed and documents as the Agent or its counsel reasonably may require or requestsatisfied.
(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
Samples: Equity Transfer Agreement (Hyster-Yale Materials Handling, Inc.)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as on the date that each of the following conditions precedent having shall have been satisfied in a manner satisfactory to or waived by 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) hereofLender:
(ai) This receipt by the Lender of:
(A) executed counterparts of this Agreement, sufficient in number for distribution to the Lender and the Borrower;
(B) Notice of Account Designation, substantially in the form of Exhibit F hereto, appropriately completed and signed by a Responsible Officer of the Borrower;
(C) if requested by the Lender, a promissory note as contemplated in Paragraph 1(d) above, substantially in the form of Exhibit D hereto, appropriately completed and signed by a Responsible Officer of the Borrower;
(D) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers as the Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents 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.Documents
(bE) All representations such documents and warranties made hereunder and in certifications as the other Loan Documents shall be true and correct as of Lender may reasonably require to evidence that the Closing Date as if made on such date (both immediately prior toBorrower is duly organized, and after giving effect tothat the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such extension of credit).qualification, except to the extent that failure to do so is not reasonably likely to have a Material Adverse Effect;
(cF) No Default or Event a favorable opinion of Default shall exist on the Closing Date, or would exist after giving effect counsel to the Loans Borrower, addressed to be made on such date or the Letters of Credit to be issued or the Credit Support to be provided on such date.Lender;
(dG) The Agent a certificate of a Responsible Officer either (1) attaching copies of all consents, licenses 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 approvals 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 by and the other validity against the Borrower of the Loan Documents to which it is a party party, and that such resolution has not been modifiedconsents, rescinded or amended licenses and is approvals shall be in full force and effect, or (C2) stating 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 hereinaboveapprovals are so required; Lowe’s Companies, 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.Inc.
(jH) 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 BorrowerBorrower certifying (A) that the conditions specified in clauses (ii) and (iii) of the section below entitled “Conditions Precedent to Borrowing, dated Conversion or Continuation” have been satisfied as of the Closing Date (regardless of whether any funding occurs on the Closing Date); and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(1) upon the reasonable request of the Lender made at least ten days prior to the Closing Date, to such effect. Execution and delivery the Borrower shall have provided to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that (i) all conditions precedent the documentation and other information so requested in this Section 10.1 have been fulfilled connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case at least five days prior to the satisfaction of Closing Date; and
(2) at least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification; and
(J) such Lenderother assurances, certificates, documents, consents or opinions as the Lender may reasonably require.
(ii) Any and all fees required to be paid on or before 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 Closing Date shall have been paid.
(iii) Unless waived by the Lender, the Borrower shall have paid all documents sent fees, charges and disbursements of counsel to the Lender (directly to such Lender for approvalcounsel if requested by the Lender) to the extent invoiced prior to or on the Closing Date or reflected on a settlement statement or funds flow statement approved by the Borrower, consent plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or satisfaction were acceptable to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Lender).
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 the following conditions precedent having been satisfied in a manner satisfactory to Administrative Agent shall have received 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) hereoffollowing:
(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 FPSC 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 Evidence satisfactory to the Administrative Agent and that (i) the Lenders shall have had an opportunity, if they so choose, to examine the books of account and other records and files conditions precedent set forth in Section 3.01 of the Loan Parties three-year $200,000,000 Credit Agreement, dated as of the date hereof, among the Company, the lenders named therein and to make copies thereofJPMorganChase, and to conduct a pre-closing audit which shall includeas administrative agent, 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 satisfied, (ii) the Existing Facilities shall have been terminated and all amounts outstanding thereunder shall have been paid in full and (iii) the Commitments (as defined therein) under the Existing CP&L Facility shall have been reduced to no more than $165,000,000. Each Bank that is also a lender under the Existing Facility described in item (ii) of the Schedule I hereof (hereinafter referred to in this subsection (g) as the "Existing JPMC Facility") hereby agrees that the termination notice delivered on April 1, 2003 by the Company to the Agent in all respectsagent under the Existing JPMC Facility shall be effective as of the date hereof, notwithstanding any lack of prior notice that would otherwise be required under the Existing JPMC Facility.
(h) All proceedings taken Favorable opinions of counsel for the Company, substantially in connection with the execution forms of this Agreement, all Exhibit C-1 and Exhibit C-2 hereto and as to such other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance to matters as any Lender through the AgentAdministrative Agent may reasonably request.
(i) The Agent shall have received a copy A favorable opinion of the certificate or articles of incorporation or other constitutive documentsKing & Spalding LLP, 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. 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 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 be 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 Secretaryhereunder.
(jiv) The Agent shall have received certificates A certificate of good standinga Responsible Officer of the Company, existence or its equivalent with respect to each Loan Party certified dated as of a recent the date by hereof, certifying (i) the appropriate Governmental Authorities accuracy of the state representations and warranties contained herein and (ii) that no event has occurred and is continuing which constitutes a Default or other jurisdiction an Event of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j)Default.
(kv) There shall be no material adverse change in the business, operations, assets, properties, liabilities, profits, prospects or financial position Certified copies of the Loan Parties as determined by the Agent all required governmental approvals and the Majority Lenders in their sole discretionauthorizations.
(lvi) 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 Certified copy of the business restated charter and properties bylaws of the Loan PartiesCompany.
(mvii) The Borrower Evidence satisfactory to the Administrative Agent that the Existing Facilities shall have received the proceeds of the Term Debt been terminated and the Agent all amounts outstanding thereunder shall have entered into an Intercreditor Agreement with the administrative agent been paid in full.
(viii) Favorable opinions of counsel for the Term Debt 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 may reasonably request.
(ix) A favorable opinion of King & Spalding LLP, counsel for the Administrative Agent, substantially in the form of Exhibit E hereto.
(nb) The Agent shall Any fees 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 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 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 The Lender has entered into this 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 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 have been satisfied duly adopted or executed and delivered by the parties thereto and shall be in a manner satisfactory full force and effect and the Documents shall not have been amended, modified or supplemented, except as may have been agreed to in writing by the Lender, and the Authority shall have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of 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 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 Agent)Lender, of Bond Counsel; and (B) the opinion of the Authority Counsel and the County Attorney, in each case the forms attached hereto as Exhibit B and Exhibit C, with such changes in such opinion as Bond Counsel and the consent of the Majority Lenders to the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:Lender shall approve;
(a2) 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 covenantsSuch additional legal opinions, 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 tocertificates, proceedings, instruments, and after giving effect toother documents, 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 Lender or any Lender shall request, each such opinion Bond Counsel may reasonably request 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 evidence (A) that attached thereto is a true and complete copy of such Loan Party's By-laws as in effect on compliance by the date of such certificate and at all times since a date prior Authority with legal requirements relating to the date issuance of the resolution described Bond or the representations set forth in item (B) belowthe Tax and Non-Arbitrage Certificate relating to the Bond, (B) that attached thereto is a true the truth and complete copy accuracy, as of a resolution adopted the date of Closing, of all representations herein contained, and (C) the due performance or satisfaction by the Authority at or prior to such Loan Party's Board date of Directors all agreements then to be performed and all conditions then to be satisfied as contemplated under this Agreement; and
(or in 3) the case of a Loan Party that is not a corporationAuthority Resolution and the County Resolution, each approving the equivalent governing body) authorizing the execution, delivery and performance terms of this Agreement and authorizing this financing. If the other Loan Documents Authority shall be unable to which it is a party satisfy the conditions to the Lender’s obligations contained in this Agreement or if the Lender’s obligations shall be terminated for any reason permitted by this Agreement, this Agreement shall terminate, and neither the Authority nor the Lender shall have any further obligations hereunder, except that such resolution has not been modified, rescinded or amended the representations and is warranties of the Authority set forth in Section 2 herein (as of the date made) will continue 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
Samples: Bond Purchase Agreement
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as (a) Conditions to Purchaser's Obligation to Close. In addition to the conditions specified elsewhere in this Contract, Purchaser's obligation to effect the respective closings contemplated by this Contract is subject in each case 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:pertaining to said Closing and/or the Relevant Centers):
(ai) This Agreement there shall exist on the closing date no pending Order prohibiting, enjoining or restraining Seller from consummating the transactions contemplated hereunder with respect to such closing;
(ii) no Material Adverse Change shall have occurred since the date hereof and remain uncured or unremedied;
(iii) Omitted
(iv) Seller and the other Loan Documents have been executed by each party thereto and each Loan Party Partnerships shall have performed in all material respects their covenants and complied with all covenants, agreements and conditions contained herein and in the other Loan Documents which are this Contract required to be performed at or complied with by such Loan Party before or on such Closing Date.
(b) All prior to the closing date, and the representations and warranties made hereunder and of Swerdlow or Seller contained in the other Loan Documents this Contract that are not qualified as to a Material Adverse Effect shall be true and correct as of the Closing Date as if made on such date (both immediately prior toin all material respects, and after giving effect to, any of such extension of credit).
(c) No Default or Event of Default representations and warranties that are so qualified shall exist on be true and correct except where the Closing Date, or would exist after giving effect to the Loans failure to be made on such date so true and correct individually or in the Letters of Credit to be issued or the Credit Support to be provided on such date.
(d) The Agent and the Lenders shall aggregate would not 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 documentsMaterial Adverse Effect, in each case amended to datecase, 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 closing as if made as of such date prior (except to the extent that the representation or warranty is expressly limited by its terms to another date of the resolution described in item (B) belowand except, (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 the representations and warranties set forth in Section 17(s), that is not a corporationclauses (i) through (vii) thereof shall be deemed modified to reflect any matters set forth in the Environmental and Engineering Reports);
(v) all permits, consents, approvals and waivers from Governmental Authorities and other persons or entities (including the equivalent governing bodyLenders) 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 necessary 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 consummation of the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among the Loan Parties and their suppliers hereby with respect to such closing shall have been fully disclosed obtained;
(vi) Seller shall have delivered to Purchaser an opinion of Xxxxxxxxx Xxxxxxx, LLP, counsel to Seller, dated as of the closing date, in form reasonably satisfactory to Purchaser as to the Agent existence, power and authorization of Swerdlow and Seller to execute, deliver and perform their obligations under this Agreement;
(vii) All Transfer Taxes if any arising out of or with respect to the Lenders and there Closing shall have been a resolution paid by the Seller or Seller shall have arranged for payment to be made at Closing. Seller shall have provided Purchaser with (i) all forms, certificates and/or other instruments required to pay the Transfer Taxes, together with evidence satisfactory to the Agent Purchaser that such Transfer Taxes have been or will be paid by Seller, and (ii) a clearance certificate or similar document(s) which may be required by any state taxing authority to relieve Purchaser of any liens arising from obligation to withhold any such supply arrangements.portion of the payments to Seller pursuant to this Agreement;
(rviii) 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 reversedany federal legislative or regulatory change that could cause Purchaser to cease to qualify (either prior to or upon consummation of the transactions contemplated hereby) as a REIT for federal or state income tax purposes;
(ix) Seller shall have delivered each of the items to be delivered by Seller pursuant to Section 20;
(x) In the case of the Hollywood Closing, modified, amended, vacated, or stayed, and, unless otherwise agreed by the Agent, all appeal periods relating Purchaser's obligations to close shall be further subject 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 10.113 (to the extent applicable to the Hollywood Center); and
(xi) In the case of the Millenia Closing, and Purchaser's obligations to close shall be further subject to the conditions set forth in Section 13 (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable the extent applicable to such Lenderthe Millenia Center).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Price Enterprises Inc)
Conditions Precedent to Closing. The effectiveness of this Agreement is subject to the satisfaction on the Closing Date This Agreement shall become effective at such time as of the following conditions precedent having been satisfied in a manner satisfactory conditions:
(a) the Company and each Guarantor shall have duly and validly executed and delivered to the Administrative Agent this Agreement;
(and b) the Administrative Agent shall have received on behalf of the Banks from Counsel for the Company, its opinion, dated the Closing Date, substantially in the case form attached hereto as Exhibit 7.01(b);
(c) the Administrative Agent shall have received on behalf of the Banks an Officer's Certificate, dated the Closing Date, substantially in the form attached hereto as Exhibit 7.01(c);
(d) no Default shall have occurred and be continuing or shall occur after giving effect to the Company's execution of this Agreement;
(e) after giving effect to the Company's execution of this Agreement, the representations and warranties made by the Company in Article VI shall be true on and as of the Closing Date;
(f) no material adverse change shall have occurred in the business, properties, operations or financial condition of the Company and its Subsidiaries on a consolidated basis since September 30, 1996;
(g) there shall not exist any documents, agreements litigation or regulatory proceedings or other deliverieslegal or regulatory development, such documentsactual or threatened, agreements that, in the good faith judgment of the Banks, could reasonably be expected to have a material and deliveries adverse effect on the business, properties, operations or financial condition of (i) the Company and its Subsidiaries taken as a whole or (ii) NewCity Communications; provided that for purposes of this clause (g), any litigation or regulatory proceeding or other legal or regulatory development shall be deemed to have a material and adverse effect as contemplated above if, after giving effect to such proceeding or development on a pro forma basis over the succeeding twelve month period, a Default would occur hereunder;
(h) the Administrative Agent shall have received from the Company certificates of appropriate officials as to the existence and good standing of the Company in its jurisdiction of incorporation and any and all jurisdictions where the Property owned or the business transacted by the Company makes such qualification necessary and where the failure to be so duly qualified would have a material and adverse effect on the business, properties, operations or financial condition of the Company and its Subsidiaries on a consolidated basis or the ability of the Company to perform its obligations under this Agreement, all in form and substance satisfactory to the Administrative Agent and counsel for the Administrative Agent);
(i) the Administrative Agent shall have received all such information as the Administrative Agent shall request concerning the insurance maintained by the Company described in Section 6.15 hereof;
(j) the Administrative Agent shall have received copies of the NewCity Merger Agreement, duly certified by an officer of the Company that such agreements are in each case the form as filed with the consent of Securities and Exchange Commission;
(k) the Majority Lenders Banks shall be satisfied as to the extent required absence of litigation related to the Transactions which could materially adversely affect their rights or interests in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:connection with this Agreement;
(al) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party Administrative Agent shall have performed received all fees and complied with all covenants, agreements other amounts due and conditions contained herein payable to the Administrative Agent and in to the other Loan Documents which are required Banks on or 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 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(i) such fees and other agreements of the Loan Parties amounts due 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 payable pursuant to the acquisition, ownership terms and transfer of Inventory of a Loan Party or otherwise.
conditions set forth in the Agents' Fee Letters and (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 Subsidiariesii) to the transactions contemplated by this Agreement and the other Loan Documents have been obtainedextent invoiced, 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 reimbursement 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 out-of-pocket 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 reimbursed 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 paid 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 LenderCompany hereunder.
Appears in 1 contract
Samples: Credit Agreement (Cox Radio Inc)
Conditions Precedent to Closing. Date This Purchaser's Conditions Precedent prior to the Closing Date
4.1 The obligations of the Purchaser under this Agreement shall become effective at such time as to Close are further subject to the following conditions precedent having been satisfied for the exclusive benefit of the Purchaser to be fulfilled in a manner satisfactory to the Agent (and all material aspects 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 reasonable opinion of the Majority Lenders Purchaser or in the Purchaser's discretion to be waived by the extent required in clauses (a) through (w) hereof Purchaser prior to or Section 13.2(a)(ii) hereofat the Closing:
(a) This Agreement the Company, the Guarantors and the other Loan Documents have been executed by each party thereto and each Loan Party Vendor shall have performed and complied with all covenantswarranties, representations, covenants and agreements and conditions contained herein and in the other Loan Documents which are required agreed to be performed or complied with caused to be performed by such Loan Party any of them on or before or on such the Closing Date.;
(b) All representations and warranties made hereunder and in the other Loan Documents Purchaser shall be true and correct as have obtained TSX Venture Exchange acceptance of the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit).transactions contemplated hereby;
(c) No Default there shall have occurred no material loss or Event destruction of Default shall exist on the Closing Date, or would exist after giving effect damage to the Loans to be made on such date Company, any of its assets, any of the Company's Business or the Letters Purchased Shares in the reasonable opinion of Credit to be issued or the Credit Support to be provided on such date.Purchaser;
(d) The Agent and no action or proceeding at law or in equity shall be pending or threatened by any person, company, firm, governmental authority, regulatory body or agency to enjoin or prohibit:
(i) the Lenders shall have received such opinions purchase or transfer of counsel (concerning, among other things, entry any of the order confirming Purchased Shares contemplated by this Agreement or the Plan right of Reorganization the Vendor to dispose of any of the Purchased Share;
(ii) the transfer of the Loan; or
(iii) the right of the Company to conduct its operations and proper notice having been given) for carry on, in the Loan Parties normal course, its business and operations as it has carried on in 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.past;
(e) The Borrower shall have paid all fees the Company and expenses the Vendor will cause the Company until Closing, during normal business hours, and limited to the verification only of the Agent Vendor's and the Attorney Costs incurred in connection with any Company's representations herein:
(i) make available for inspection by the counsel, auditors and representatives of the Loan Documents Purchaser, at such location as is appropriate, the Company's books, records, contracts, documents, correspondence and other written materials, and afford such persons every reasonable opportunity to make copies thereof and take extracts therefrom at the sole cost of the Purchaser, provided such persons do not unduly interfere in the operations of the Company;
(ii) authorize and permit such persons at the risk and the transactions contemplated therebysole cost of the Purchaser, includingand only if such persons do not unduly interfere in the operations of the Company, without limitation pursuant to attend at all of its places of business, inspect its assets and financial records; and
(iii) require the Fee Letter.Company's management personnel to respond to all reasonable inquiries concerning the Company's Business, its assets or the conduct of its business relating to its liabilities and obligations;
(f) To the extent not previously provided under delivery by the DIP Loan Agreement, Company and Vendor to the Agent shall have received evidencePurchaser of an opinion of the counsel for the Company, in form, scope, and substance, reasonably a form satisfactory to the AgentPurchaser's counsel (respecting subparagraphs (i) to (v) below), dated as at the date of all insurance coverage as required by Closing together with the Agreement.
certificate of one officer of the Company (gregarding the facts set out in subparagraphs (vi) The Agent and the Lenders shall have had an opportunity, if they so choose(vii)), 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.effect that:
(i) The Agent shall have received the Company is a copy corporation duly incorporated under the laws of its jurisdiction of incorporation, is validly existing and is in good standing with respect to all statutory filings required by the applicable corporate laws;
(ii) the Company has the requisite corporate power, authority and capacity to own and use all of its assets and to carry on its business as presently conducted by it;
(iii) the Vendor has taken all necessary proceedings to sell and transfer all the Purchased Shares under this Agreement;
(iv) the number of authorized and issued shares in the share capital of the certificate or articles of incorporation or other constitutive documentsCompany are as warranted by the Company and the Vendor, and the Purchased Shares has been duly authorized, validly issued and outstanding as fully paid and non-assessable;
(v) all necessary steps and corporate proceedings have been taken by the Company and the Vendor to permit the Purchased Shares to be duly and validly transferred to and registered in each case amended to date, of each the name of the Loan Parties, certified Purchaser as of a recent date by at the Secretary of State or other appropriate official of Closing Date;
(vi) that the state or other jurisdiction of its organization Company's representations and dated the Schedules in this Agreement (as of a recent date; a certificate of the Secretary of each of the Loan Parties, dated updated) are true and correct on the Closing Date and certifying (A) that attached thereto is a true based on actual knowledge and complete copy belief, the officers know of such Loan Partyno claims, judgments, actions, suits, litigation, proceedings or investigations, actual, pending or threatened, against either the Company or the Vendor which might materially affect either the Company, its assets or the Company's By-laws as Business or which could result in effect on the date of such certificate and at all times since a date prior any material liability to the date either of the resolution described in item Company, its assets or the Company's Business; and
(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 (Dvii) as to the incumbency and specimen signature of each of such Loan Party's officers executing this Agreement or any all 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 legal matters of a recent date by like nature pertaining to the appropriate Governmental Authorities of Vendor, 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 businessCompany, operations, its assets, properties, liabilities, profits, prospects or financial position of the Loan Parties as determined by the Agent Company's 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 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 hereby as 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 Purchaser or regulation shall be applicable in the judgment Purchaser's counsel may require on reasonable notice.
4.2 The obligations 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 Vendor under this Agreement to Close are further subject to the following conditions for the exclusive benefit of the Vendor to be fulfilled in all material aspects in the reasonable opinion of the Vendor or in the Vendor's discretion, to be waived by the Vendor prior to or at the Closing:
(including a) the rollover Purchaser shall have complied with all warranties, representations, covenants and agreements herein agreed to be performed or caused to be performed by the Purchaser on or before the Closing Date;
(b) there has occurred no material loss or destruction of Loans under or damage to the DIP Loan Agreement)Purchaser's business or material assets;
(c) no action or proceeding at law or in equity shall be pending or threatened by any person, the payment of all fees and expenses required hereunder and company, firm, governmental authority, regulatory body or agency to enjoin or prohibit:
(i) 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.Sonic Shares; or
(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 right of such Lender the Purchaser to execute conduct its operations and deliver carry on, in the normal course, its business and operations as it has carried on in the past;
(d) an officer of the Purchaser has provided a certificate substantially similar 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 that referred to the satisfaction of any condition precedent set forth in this Section 10.1, and (iii4.1(f)(vi) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderabove.
Appears in 1 contract
Samples: Share Purchase Agreement (Sonic Environmental Solutions Inc/Can)
Conditions Precedent to Closing. Date This 10.1. The obligations of Buyer pursuant to this Agreement shall become effective shall, at such time as the option of Buyer, 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 precedent:
10.1.1. All 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 of Seller set forth in the other Loan Documents this Agreement shall be true and correct in all material respects as of the Effective Date and as of the Closing Date Date, with such changes 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 are shown on the Closing DateInspection Period Certificate. Seller shall not have on or prior to Closing, failed to meet, comply with or would exist after giving effect to the Loans to be made perform in any material respect any conditions or agreements 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 Seller’s part 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 terms of this Agreement, all other Loan Documents and all documents and papers relating thereto shall be satisfactory in form, scope, and substance . Notwithstanding the foregoing or anything herein to the Agent.
contrary, if (i) The Agent shall have received Seller has failed to meet, comply with or perform in any material respect any conditions or agreements as aforesaid, or (ii) there has been a copy of Material Adverse Change between 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 Inspection Period 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 following: (a) the representations and warranties of Seller, (b) the transactions contemplated thereby.
(q) The terms of all sourcing arrangements among rent roll for 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, vacatedProperty, or stayed(c) the accounts receivable schedule, andthen Seller shall have, unless otherwise agreed by the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals under either (unless consented to by Agenti) 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 (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 Agreementii), the payment of all fees right in Seller’s sole and expenses required hereunder absolute discretion (but not the obligation) to cure same within twenty (20) days thereafter, 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 extended as reasonably necessary in connection therewith. However, notwithstanding anything herein to the contrary, if applicable, in no event shall the date of Closing be extended for any period of time which would cause the Lender to withdraw its consent to the sale of the Property or fail to close the Assumption. As used herein, a “Material Adverse Change” is a change in the facts or circumstances underlying a Seller representation or warranty, the rent roll, or the accounts receivable schedule, which arises from changes at the Property (as distinguished from changes in economic conditions in general or from casualty damage, the effect of which is otherwise addressed in this Agreement), and warranty made which causes the fair market value of the Property, as mutually agreed by the Borrower to parties (and if the effect that all of the conditions precedent to the making of such Loans or the issuance of such Letters of Credit have been satisfiedparties cannot agree, with the same effect as delivery to the Agent and the Lenders of a certificate signed determined by a Responsible Officer of the Borrower, dated the Closing Datemutually acceptable third party appraiser), to such effect. Execution decrease by at least Five Hundred Thousand and delivery to the Agent by a Lender of a counterpart of this Agreement shall be deemed confirmation by such Lender that No/100 Dollars (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$500,000.00).
Appears in 1 contract
Samples: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
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 xxxx 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 10.1. The obligations of Buyer pursuant to this Agreement shall become effective shall, at such time as the option of Buyer, 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 precedent:
10.1.1. All of the Majority Lenders to the extent required representations, warranties and agreements of Seller set forth in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This 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 in all material respects as of the Closing Date as if made on such date (both immediately prior toEffective Date, and after giving effect toSeller shall not have on or prior to Closing, such extension of credit).
(c) No Default failed to meet, comply with or Event of Default shall exist perform in any material respect any conditions or agreements 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 Seller’s part as required by the terms of this Agreement.
(g) The Agent and 10.1.2. There shall not exist any material, adverse encumbrance or title defect affecting the Lenders Property except for the Permitted Exceptions or matters to be satisfied at Closing.
10.1.3. Seller shall have had an opportunityobtained and delivered to Buyer estoppel certificates, in accordance with their respective Leases, from Tenants representing seventy percent (70%) of the square feet which are leased and occupied by Tenants as of the Effective Date. Estoppel certificates may be on the form required by the applicable Lease or the form attached hereto as Exhibit D. Unless they disclose material, adverse matters inconsistent with their respective Leases, estoppel certificates shall be deemed to satisfy this condition precedent. With respect to Tenants who are governmental entities, if they so chooseany, to examine estoppel certificates in the books standard form typically provided by such governmental entity shall satisfy this condition precedent. Buyer shall notify Seller within three (3) business days of account and other records and files receipt 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 executed estoppel certificate of its approval or articles disapproval and the basis of incorporation or other constitutive documentssuch disapproval, in each case amended to date, if disapproved. If Buyer disapproves of each of the Loan Parties, certified as an estoppel certificate because of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of material, adverse matter disclosed therein which is inconsistent with its organization Lease, and dated as of Seller is unable to obtain a recent date; a reasonably acceptable estoppel 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 Closing, this Agreement shall terminate upon Buyer’s written notice to Seller and return of the resolution described Due Diligence Items, Buyer shall be entitled to a refund of the Deposit and neither party shall have any further obligation to the other except Buyer’s indemnification obligations under Section 5. Notwithstanding anything to the contrary in item this Section, Seller shall have the right, in Seller’s sole and absolute discretion, but not the obligation, 19 - AGREEMENT FOR PURCHASE AND SALE to cure or otherwise satisfy the basis for Buyer’s disapproval of an estoppel certificate by the payment of money to a particular Tenant.
10.1.4. Buyer shall have obtained on or before the 15th day following the Effective Date (Bthe “Financing Contingency Period”) belowa commitment acceptable to Buyer to finance the purchase of the Property. If Buyer fails to give to Seller during this period written notice that this condition has been satisfied or waived (the “Financing Contingency Removal Notice”), (B) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or in then this Agreement shall automatically terminate at the case of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance expiration of this Agreement period and the other Loan Documents Deposit, less one-half (1/2) of any escrow cancellation fee, shall be returned 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 Buyer upon return 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 Due Diligence Items; Buyer’s obligations set forth in Section 5 shall survive 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 Secretarytermination.
(j) 10.2. The Agent shall have received certificates obligations 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 Seller under this Agreement (including shall, at the rollover option of Loans under the DIP Loan Agreement)Seller, 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 subject to the "Effective Date" following conditions precedent:
10.2.1. All of the Borrower's Plan representations, warranties and agreements 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 Buyer set forth 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 true and correct in all material respects as of the Effective Date, and Buyer shall not have on or prior to Closing, failed to meet, comply with or perform in any material respect any conditions or agreements on Buyer’s part as required 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 terms of this Agreement.
10.2.2. Seller shall have received approval of the sale from all entities comprising Seller no later than five (5) business days after the Effective Date.
10.3. If any such condition is not fully satisfied by Closing, the party in whose favor the condition runs shall notify the other party and may terminate this Agreement was made by written notice (in all events such Lender independently written notice shall be given prior to Closing) whereupon this Agreement may be canceled, and without reliance on upon return of the Agent or Due Diligence Items, the Deposit shall be paid to Buyer and, thereafter, neither Seller nor Buyer shall have any other Lender continuing obligations hereunder except as otherwise expressly set forth herein; provided, however, that if Buyer notifies Seller of a failure to satisfy the satisfaction of any condition conditions precedent set forth in this Section 10.1, Seller may, within five (5) days of receipt of Buyer’s notice agree to satisfy the condition by written notice to Buyer, and (iii) all documents sent Buyer shall thereupon be obligated to close the transaction contemplated hereby provided Seller so satisfies such Lender for approval, consent or satisfaction were acceptable to such Lendercondition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (NNN 2003 Value Fund LLC)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as (a) Mxxx-Xxxx’x 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 Mxxx-Xxxx, 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 Gxxx SLG Transferors shall have delivered to or for the benefit of Mxxx-Xxxx, on or before the Closing Date, all of the documents and items required of the Gxxx SLG Transferors pursuant to Section 12(a), and the other Loan Documents have been executed by each party thereto and each Loan Party Gxxx 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 Gxxx 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) Mxxx-Xxxx 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 Mxxx-Xxxx Interest shall be free and clear of creditany Encumbrances;
(viii) The Debt Assumption shall occur (provided that Mxxx-Xxxx 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 Gxxx 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 Gxxx SLG Transferors, in their sole and absolute discretion:
(i) Mxxx-Xxxx shall have paid the Total Purchase Price pursuant to the terms hereof;
(ii) Mxxx-Xxxx shall have delivered to or for the benefit of Default shall exist Gxxx SLG, on or before the Closing Date, all of the documents and items required to be delivered by Mxxx-Xxxx pursuant to Section 12(b), and Mxxx-Xxxx 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 Mxxx-Xxxx’x 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
Samples: Contribution and Sale Agreement (Mack Cali Realty Corp)
Conditions Precedent to Closing. 3.1 The obligation of GLAM II and SFH to proceed to Closing on the Closing Date This Agreement shall become effective at such time as be subject to fulfillment of the following conditions (unless waived in writing (a) in case of the conditions in (i) and (iii) by GLAM II, and (b) in case of the conditions in (ii) by SFH):
(i) the Investment Agreements shall have been executed by the parties thereto in the form set forth in Exhibit A; and SFH shall have confirmed to GLAM II in writing that the conditions precedent having to its obligations therein have been satisfied in a manner satisfactory and/or waived;
(ii) GLAM II’s Warranties are true and correct on the Execution Date and on and as of the Closing Date with the same effect as though they had been made on and as of the Completion Date and all undertakings and covenants herein made by GLAM II (to the Agent (extent required to be performed on or prior to the Closing Date) shall have been duly performed and SHF shall have received evidence that the share pledge to be granted to SFH over IFMOP’s shares in the case of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be IFM Investments has been perfected 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:SFH; and
(aiii) This Agreement SFH’s 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 IFM Parties’ Warranties 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 on the Execution Date and 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 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 though they had been made on and as of the Closing Date and all undertakings and covenants herein made by SFH and the IFM Parties (to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated extent required to be performed on or prior to the Closing Date, ) shall have been duly performed.
3.2 The Parties shall cooperate with each other in good faith and shall undertake reasonable efforts 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 ensure that (i) all conditions precedent in this Section 10.1 have been fulfilled to Clause 3.1 are satisfied as soon as reasonably practicable after 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 Lenderdate hereof.
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 Xxxxx Xxxxxxxxxx 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 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) hereofsatisfaction of the following matters on or prior to the Closing Date:
(ai) This Seller shall have deposited with the Escrow Agent all documents required of Seller to be delivered into Escrow hereunder;
(ii) Seller shall not be in material default of its obligations hereunder; provided that Buyer shall have provided notice to Seller of such default and Seller shall have the right to cure such default and, unless Buyer waives any such default, Seller, at its option, shall be entitled to a reasonable adjournment of the Closing (not to exceed five (5) days from the later of the originally scheduled Closing Date or Seller's receipt of notice from Buyer of the default) in which to effect such cure, subject to the provisions of SECTION 4(G) above;
(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 other Loan Documents Closing Date, subject to SECTION 8(E) above;
(iv) The Title Company shall be prepared to issue to Buyer an ALTA Owner's Title Insurance Policy, with such endorsements as Buyer has specified and which the Title Company has included in its commitment issued prior to the expiration of the Due Diligence Period, and with liability equal to the total purchase price for the Property, insuring Buyer that fee title to the Property is vested in Buyer subject only to the Conditions of Title; and
(v) The Tenant Estoppel Condition shall 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 Datesatisfied.
(b) All Seller's obligations to perform hereunder are expressly contingent and conditional upon the satisfaction of the following:
(i) Buyer shall have deposited or have caused to be deposited with the Escrow Agent all documents and funds required of Buyer to be deposited into Escrow or paid hereunder;
(ii) Buyer shall not be in material default of its obligations hereunder; provided that Seller shall have provided notice to Buyer of such default and Buyer shall have the right to cure such default and, unless Seller waives any such default, Buyer, at its option, shall be entitled to a reasonable adjournment of the Closing (not to exceed five (5) days from the later of the originally scheduled Closing Date or Buyer's receipt of notice from Seller of the default) in which to effect such cure;
(iii) The representations and warranties made hereunder and of Buyer contained in the other Loan Documents SECTION 8(B) of this Agreement shall be true and correct in all material respects as of the Closing Date Date; and
(iv) Buyer or its assignee shall have executed a management and exclusive leasing agreement with Lawler-Wood, LLC in a form substantially identical to xxxx xxxxxhed hereto as if made on such date (both immediately prior to, and after giving effect to, such extension of creditSCHEDULE 9(B)(IV).
(c) No Default or Event The parties acknowledge that the conditions precedent set forth in SUBSECTION (A) above are for the benefit of Default 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 exist on be 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 . If 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 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 terminate this Agreement by written notice of termination given to the making other party on or before the Closing Date or, if earlier, within ten (10) days after the date by which the condition must be satisfied. If such notice of such Loans or termination is given, Escrow Agent shall return all documents and funds previously deposited into escrow to the issuance of such Letters of Credit have been party so depositing same, except if the events described in SUBSECTIONS 9(B)(I) THROUGH (IV) are not satisfied, with the same effect as delivery Deposit shall be transferred to Seller and neither party shall have any further liability to the Agent and other hereunder, except as otherwise provided herein. Notwithstanding the Lenders of foregoing, a certificate signed by a Responsible Officer of party for whose benefit the Borrowercondition precedent exists shall have the right to waive satisfaction thereof, dated the Closing Date, to such effect. Execution and delivery to the Agent by a Lender of a counterpart of in which event this Agreement shall be deemed confirmation by such Lender that (i) proceed to Closing as otherwise provided herein. Unless notice of failure to satisfy conditions precedent is given as above provided, 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 Lendershall be deemed satisfied.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
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, 2005 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 Xxxxxx X. Xxxx, General Counsel of 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, 2005, 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 June 30, 2006 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 shall become effective 4.1 Conditions to the Obligations of Purchaser The obligation of Purchaser to complete the Transaction is subject to the satisfaction (or waiver by Purchaser), at such time as or prior to 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 and no Applicable Laws make illegal the other Loan Documents consummation of the Transaction;
(b) the Regulatory Approval shall have been executed by each party thereto and each Loan Party obtained or shall have performed been waived in writing by the applicable Governmental Authority, and complied with all covenants, agreements and conditions contained herein and in respect thereof imposed by the other Loan Documents which applicable Governmental Authority that are required to be performed or complied with by such Loan Party before or on such satisfied prior to 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).have been satisfied;
(c) No Default notwithstanding anything contained in this Agreement, the Parties acknowledge and accept that this Agreement shall terminate and be of no further force and effect and, therefore, there will be no obligation for Purchaser to purchase the Put-8 Assigned Interest if Amerisur and/or any of its permitted assignees under the Put-8 JOA in respect of the Put-8 ROFR exercises its rights to acquire the Put-8 Assigned Interests at any time before the expiry of the time period provided for in the ROFR Notice (or Event of Default shall exist on at such other later date as it may be decided by the Closing Parties) (the “ROFR Expiry 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.clarity:
(i) The Agent shall have received a copy if by the ROFR Expiry Date Amerisur and/or any of its permitted assignees under the Put-8 JOA in respect of the certificate Put-8 ROFR either waives its rights under the PUT-8 JOA, or articles of incorporation does not send a written communication to Seller confirming that such Put-8 ROFR is exercised 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 corporationwaived, the equivalent governing body) authorizing the execution, delivery Parties agree that Closing shall occur in accordance and performance of subject to 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.Agreement;
(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) if Amerisur and/or any of its permitted assignees under the decision Put-8 JOA in respect of the Put-8 ROFR objects the form or content of the ROFR Notice, the Parties will do all things necessary to rectify the form and contact of such Lender to execute ROFR Notice and deliver the ROFR Expiry Date will be extended to the Agent an executed counterpart of this Agreement was made by extent necessary to resolve 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 Lenderobjection.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Gran Tierra Energy 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 the Agent (and in the case of any documents"Conditions Precedent") on or before November 15, 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 2000 (a) through (w) hereof or Section 13.2(a)(ii) hereof:"Contingency Date"):
(a) This Agreement Title/Survey. Seller has previously furnished to Purchaser (i) a current title commitment bearing application No. HEN.OR973633C ("Commitment") for an owner's title policy issued by the Title Company showing title in Seller (with copies of all underlying title documents listed in the Commitment other than any financing documents encumbering the Real Property), which Commitment is in a nominal amount, but shall be increased to the Purchase Price at Closing, and (ii) an as-built survey ("Survey") for the Real Property prepared in accordance with the Minimum Standard Detail Requirements for Class A Land Title Surveys (jointly established by ALTA/ACSM, as revised in 1999) and certified to Seller and the Title Company (and to be certified to Purchaser and Purchaser's lender prior to the Contingency Date). If the Survey discloses survey defects or if the Commitment shows exceptions (collectively, "Unpermitted Encumbrances") other Loan Documents have been executed by each party thereto than the matters set forth on Exhibit H attached --------- hereto and each Loan Party made a part hereof (collectively, "Permitted Encumbrances"), then Purchaser shall notify Seller, in writing, on or before November 6, 2000, specifying the Unpermitted Encumbrances. In such event, prior to the Contingency Date, Purchaser shall have performed and complied with all covenantsreceived adequate assurances in writing from Seller that the Unpermitted Encumbrances will be removed, agreements and conditions contained herein and satisfied, or cured on or before Closing, it being acknowledged by the parties hereto that the written commitment by the Title Company to delete the requirement set forth 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 item 1 of Schedule B, Section 1, 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 Commitment from the Closing Date, or would exist after giving effect to the Loans to be made on such date or the Letters of Credit final title insurance policy 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 Title Company 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 constitute removal or cure of such examination and audit and appraisal shall have been satisfactory to the Agent in all respectsUnpermitted Encumbrance for purposes hereof.
(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
Samples: Purchase Agreement (Wells Real Estate Investment Trust Inc)
Conditions Precedent to Closing. Date This Agreement A Closing shall become effective at such time as occur only if the following conditions precedent having have been and remain satisfied (or waived by the Investor in writing in respect of the relevant Closing):
(i) the Company has filed a manner satisfactory Prospectus Supplement in connection with the applicable Draw Notice qualifying the Draw Shares for distribution and such Draw Shares will be free trading upon their issuance (subject only to Section 6(c) hereof), and the Company shall not have received any notice of the suspension of qualification of the Common Shares for offering or sale in any Qualifying Jurisdiction or the initiation of any proceeding for such purpose; Draw Shares shall be free trading under applicable Canadian Securities Laws and DRS statements (or certificates, as applicable) representing the Draw Shares shall contain no restrictive trading legend;
(ii) the issuance of the Draw Shares will not require the Company to obtain the approval of its shareholders;
(iii) the issuance of the Draw Shares will not result in the Investor becoming an Insider (and if requested by the Investor the Company will provide a certificate from the transfer agent of the Company as to the Agent number of Common Shares issued and outstanding as at the date immediately prior to the Closing Date);
(iv) the Common Shares remain Listed on the NEO;
(v) listing or trading of the Common Shares has not been suspended or threatened to be suspended by the NEO or any Securities Commission during the 20 Trading Days prior to the delivery of the Draw Notice;
(vi) the Draw Shares shall have been conditionally approved for listing by the NEO and all necessary notices and filings will have been made with and all necessary consents, approvals, authorizations or waivers will have been obtained by the Company from the NEO to ensure that, subject to fulfilling the Standard Listing Conditions, the Draw Shares will be listed and posted for trading on the NEO upon their issuance;
(vii) in the case sole reasonable discretion of any documentsthe Investor, agreements no Material Adverse Effect or other deliveries, such documents, agreements and deliveries Change of Control has occurred or is reasonably expected to occur;
(viii) the Company shall be in form and substance satisfactory have furnished to the Agent)Investor a certificate, in each case with the consent signed by an officer of the Majority Lenders Company, dated the date of the applicable Closing Date, that (A) the Company has duly complied and will continue to comply with all the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This terms, covenants, and conditions of this Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party shall have performed and on its part to be complied with all covenants, agreements up to and conditions contained herein and in following the other Loan Documents which are required to be performed or complied with by such Loan Party before or on such Closing Date.
time of Closing; (bB) All the representations and warranties made hereunder and of the Company contained in the other Loan Documents shall be this Agreement are true and correct as of the applicable time of Closing Date with the same force and effect as if made on such date (both immediately prior to, at and as of the time of Closing 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 effectAgreement; 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
Samples: Common Share Subscription Agreement
Conditions Precedent to Closing. Date This Agreement The Commitments of the Lenders shall not become effective at such time as unless and until all fees due and payable by the following conditions precedent having Borrower in connection with this Agreement have been satisfied in a manner satisfactory to paid and the Administrative Agent (and in shall have received 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) hereoffollowing:
(a) This Agreement and Promissory notes, in a form acceptable to the other Loan Documents have been executed by Administrative Agent, payable to the order of 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 Lender that has requested such Loan Party before or on such Closing Datea note.
(b) All representations Copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and warranties made hereunder and in all documents evidencing other necessary corporate action, certified by the other Loan Documents shall Secretary or an Assistant Secretary of the Borrower to be true and correct correct, and in full force and effect 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)hereof.
(c) No Default A certificate of the Secretary or Event an Assistant Secretary of Default shall exist on the Closing DateBorrower, or would exist after giving effect dated as of the date hereof, certifying the names and true signatures of the officers of the Borrower 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 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 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 as of the Closing Datedate hereof, 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 certifying (i) all conditions precedent in this Section 10.1 have been fulfilled to the satisfaction accuracy of such Lender, the representations and warranties contained herein and (ii) that no event has occurred and is continuing that constitutes an Event of Default or that would constitute an Event of Default but for the decision requirement that notice be given or time elapse, or both.
(e) Certified copies of such Lender all governmental approvals and authorizations required to execute be obtained in connection with the execution, delivery and deliver to performance by the Agent an executed counterpart Borrower of this Agreement was made by such Lender independently Agreement.
(f) Certified copies of the Restated Charter and without reliance on By-Laws of the Agent or any other Lender Borrower.
(g) Favorable opinions of William D. Johnson, General Counsel of the Borrower, and of Hunxxx & Xxxxxxxx XXX, counsel for the Borrower, substantially in the forms xx Xxxxbit C-1 and C-2, respectively, hereto and as to such other matters as any Lender through the satisfaction Administrative Agent may reasonably request.
(h) A favorable opinion of any condition precedent set forth King & Spalding LLP, counsel for the Administrative Agent, substantially in this Section 10.1, and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such Lenderthe form of Exhibit D hereto.
Appears in 1 contract
Conditions Precedent to Closing. Date This Agreement 7.1 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 Agent purchase and sale transaction contemplated herein (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:“Purchaser’s Conditions Precedent”):
(a) This Agreement The representations and warranties set forth in Section 4 shall be true and correct in all material respects as of the other Loan Documents Closing Date except for breaches thereof which do not in the aggregate have been executed by a material adverse effect on the value of the Real Property or Seller Subsidiary Interest, each party thereto taken as a whole, and each Loan Party Seller shall have duly and substantially performed each and complied with all covenantsevery material covenant, agreements undertaking and conditions contained herein and in the other Loan Documents which are required agreement to be performed or complied with by such Loan Party before or on such Closing DateSellers under this Agreement, including the delivery of the documents described in Sections 9.1 and 9.2 hereof.
(b) All representations The Title Company shall be unconditionally prepared and warranties made hereunder irrevocably committed to issue ALTA extended coverage owner’s policies of title insurance (the “Title Policies”) insuring the interest of each Applicable Seller Subsidiary Entity and Purchaser, as successor by merger to such Applicable Seller Subsidiary Entity, in each Applicable Real Property, dated the Closing Date, with an aggregate liability for each policy of title insurance in the other Loan Documents shall be true and correct as amount of the Closing Date as if made on Purchase Price for the Applicable Subsidiary Entity Interests of the Applicable Seller Subsidiary Entity owning the Applicable Property, in the forms, containing such date (both immediately prior toendorsements, and after giving effect tosubject only to such exceptions as have been reasonably approved by Sellers, such extension of credit)Purchaser and Purchaser’s Lender.
(c) No Default or Event of Default shall exist on the Closing Date, or would exist after giving effect 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 Boulder Property, Purchaser shall have received such opinions of counsel at least seven (concerning, among other things, entry of the order confirming the Plan of Reorganization and proper notice having been given7) 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 days prior to the AgentClosing, 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 an executed Ground Lessor Consent and Estoppel Certificate from the certificate or articles of incorporation or other constitutive documents, in each case amended to date, of each of lessor under 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 Boulder Ground Lease substantially in the form of Exhibit E hereto.
J-1 attached hereto (nwith such changes thereto reasonably approved by Purchaser and Purchaser’s initial lender), dated no more than thirty (30) The Agent shall be satisfied with days prior to the terms and conditions of all material Debt Closing (including, without limitation, the Term Debt“Ground Lessor Estoppel Certificate”) and other agreements (ii) an executed Fee Mortgagee Estoppel Certificate from any mortgagee of fee title to the Loan Parties Boulder Ground Leased Land substantially in the form of Exhibit J-2 attached hereto (with such changes thereto reasonably approved by Purchaser and their Subsidiaries Purchaser’s initial lender), dated no more than thirty (30) days prior to remain outstanding after the Closing Date (including, without limitation, any subordination or other intercreditor provisions contained therein or applicable theretothe “Fee Mortgagee Estoppel Certificate”).
(od) The Agent Each Seller shall be reasonably satisfied with have formed its Applicable Seller Subsidiary Entity and transferred its Applicable Property to its Applicable Seller Subsidiary Entity in the all intercompany arrangements relating to the acquisition, ownership and transfer of Inventory of a Loan Party or otherwisemanner required under Section 2.2 above.
(pe) The Agent and Concurrently or substantially concurrently with the Lenders shall have received evidence reasonably satisfactory to them that all material requisite governmental and material third party consents and approvals Closing (including, without limitation, consents with respect to each Loan Party and each of its Subsidiariesi) 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.
Merger (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 Merger Agreement) shall be consummated, (ii) SCI shall have been met entered into the Master Lease, and (or iii) SCI and the waiver thereof Sellers shall have been consented to by entered into the Agent, which consent shall not be unreasonably withheld or delayed) and the "Effective Date" and Consummation Date Subleases. If any of the Plan of Reorganization foregoing Purchaser’s Conditions Precedent are not satisfied with respect to a particular Property or Subsidiary Entity Interests, Purchaser shall have occurred the right at its sole election either to waive the condition in question and proceed with the purchase of such Subsidiary Entity Interests pursuant to all of the other terms of this Agreement or, in the alternative, to terminate this Agreement with respect to such Subsidiary Entity Interests or in its entirety. In the event that Purchaser elects to terminate this Agreement with respect to such Subsidiary Entity Interests as provided in the foregoing sentence, this Agreement shall be scheduled become null and void without further obligation on the part of Purchaser and Seller of such Subsidiary Entity Interests with respect to such Subsidiary Entity Interests. In the event Purchaser elects to terminate this Agreement in its entirety, this Agreement shall become null and void without further obligation on the part of Purchaser and Sellers.
7.2 The obligation of each Seller to consummate the transactions contemplated hereunder 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 are each conditioned on the fulfillment of the following (“Sellers’ Conditions Precedent”) on and as of the Closing Date:
(a) The truth, in all material respects, of each and every representation and warranty made by Purchaser and the Borrower due performance of each and every material covenant, undertaking and agreement to be performed by Purchaser under this Agreement (including, but not limited to, the effect that delivery by Purchaser of the items, and the making of the payments, described in Section 10 below).
(b) Concurrently or substantially concurrently with the Closing (i) the Merger (as defined in the Merger Agreement) shall be consummated and (ii) Purchaser shall have entered into the Master Lease.
(c) The Title Company shall be unconditionally prepared and irrevocably committed to issue ALTA extended coverage leasehold owner’s policies of title insurance insuring SCI’s leasehold estate under the Master Lease and each Seller’s leasehold estate under the Sublease for the Applicable Property, dated the day and time of the Closing, with an aggregate liability for each policy of title insurance in the amount of the Purchase Price for the Applicable Property (or such other amount designated by such Seller), in forms approved by Sellers, and subject only to such exceptions as set forth in the Title Policies. If any of the foregoing Sellers’ Conditions Precedent are not satisfied with respect to a particular Property or Subsidiary Entity Interests, the Seller of such Subsidiary Entity Interests shall have the right at its sole election either to waive the condition in question and proceed with the sale of such Subsidiary Entity Interests pursuant to 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 other terms of this Agreement or, in the alternative, to terminate this Agreement with respect to such Subsidiary Entity Interests or in its entirety. In the event that such Seller elects to terminate this Agreement with respect to such Subsidiary Entity Interests as provided in the foregoing sentence, this Agreement shall be deemed confirmation by become null and void without further obligation on the part of Purchaser and such Lender that (i) all conditions precedent Seller with respect to such Subsidiary Entity Interests. In the event any Seller elects to terminate this Agreement in its entirety, this Section 10.1 have been fulfilled Agreement shall become null and void without further obligation on the part of Purchaser and Sellers.
7.3 Notwithstanding anything to the satisfaction of such Lendercontrary contained herein, (ii) in the decision of such Lender to execute and deliver event that the Merger Agreement is terminated pursuant to the Agent an executed counterpart of terms thereof, this Agreement was made by such Lender independently shall automatically terminate and become null and void without reliance further obligation on the Agent or any other Lender as to the satisfaction part of any condition precedent set forth in this Section 10.1, Purchaser and (iii) all documents sent to such Lender for approval, consent or satisfaction were acceptable to such LenderSellers.
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 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 The following shall be true conditions precedent to Purchaser's obligation to consummate the purchase and correct as of sale transaction contemplated herein (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."Purchaser's Conditions Precedent"):
(i) The Agent Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 16(a) or Section 16(b) of this Agreement within the time periods described in said Sections.
(ii) Title Company shall stand ready to issue, at the Closing, an ALTA Form B 1970 Owner's Policy of Title Insurance (the "Title Policy"), dated the date and time of Closing and with policy coverage in the amount of the Purchase Price, insuring Purchaser as owner of good, marketable and indefeasible fee title to the Property, subject only to the Permitted Exceptions, and affirmatively insuring as a part of Schedule A to such title policy Purchaser's rights under the REAs or other appurtenant easements that benefit the Real Property and containing the following endorsements: an extended coverage endorsement over the general exceptions contained in the policy, an endorsement insuring against loss of title to the Property or the inability of the owner of the Property to maintain the improvements now located on the Property by reason of a violation of a covenant, condition or restriction of record affecting the Property, a location endorsement insuring the accuracy of the Survey, an endorsement insuring legal access to the Property from each of the streets bordering on the Property, and insuring that all such streets are dedicated public streets, a contiguity endorsement, a zoning 3.1 endorsement including coverage over parking, a tax parcel endorsement, a utility facility endorsement and such other endorsements reasonably requested by Purchaser.
(iii) Purchaser shall have received a copy of and reasonably approved, within two (2) days after the certificate or articles of incorporation or other constitutive documentsdelivery thereof, 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 executed estoppel 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 D hereto from each of the Major Tenants and from Tenants occupying the leasable space in the Improvements which is leased as of the date of this Agreement; provided, however, that if the form of estoppel certificate attached hereto as Exhibit D requests information in addition to or different than that required to be given pursuant to a Tenant's Lease, this condition will be satisfied with for such Tenant(s) if such Tenant(s) executes an estoppel certificate in the terms and conditions of form required pursuant to its Lease. If Seller is unable to obtain an estoppel certificate from all material Debt Tenants (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 Tenants from whom estoppel certificates 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 not been obtained, and remain the "Missing Tenants"), but has obtained an estoppel certificate from all Major Tenants, then, in full force and effect; all applicable waiting periods shall have expired without any action being taken lieu thereof, Seller may satisfy this Condition Precedent by any competent authority; and no law or regulation shall be applicable in providing to Purchaser a certificate pertaining to each Missing Tenant (each a "Seller's Certificate"), covering the judgment of the Agent same matters 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 would 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 10.1the Missing Tenant's estoppel certificate (and if, and (iii) all documents sent after the Closing, Seller delivers to such Lender Purchaser or Manager obtains a tenant estoppel certificate from a Missing Tenant for approvalwhom Seller executed a Seller's Certificate at the Closing, consent or satisfaction were acceptable to such Lender.then Seller thereafter shall
Appears in 1 contract
Samples: Purchase and Sale Agreement (General Growth Properties 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:
(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 The following shall be true conditions precedent to Purchaser’s obligation to consummate the purchase and correct as of sale transaction contemplated herein (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.“Purchaser’s Conditions Precedent”):
(i) The Agent Purchaser shall not have terminated this Agreement in accordance with Section 4, Section 5, Section 16(a), Section 16(b), Section 17 or any other applicable section of this Agreement within the time periods described in said sections.
(ii) Title Company shall be irrevocably committed to issue, at the Closing, the Approved Title Policy, subject to Purchaser’s payment of the title premiums for which Purchaser is responsible hereunder.
(iii) Purchaser shall have received a copy of the certificate or articles of incorporation or other constitutive documentsreceived, 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 no less than three (A3) 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 business days prior to the date Closing, executed estoppel certificates in the form of the resolution described in item Approved Estoppels (Bas defined below) below(with no changes other than de minimis changes reasonably approved by Purchaser) and not disclosing the existence of any default under the Leases referenced therein, from tenants occupying at least eighty percent (B80%) that attached thereto is a true and complete copy of a resolution adopted by such Loan Party's Board of Directors (or the leasable space in the case Improvements which is leased as of a Loan Party that is not a corporation, the equivalent governing body) authorizing the execution, delivery and performance date 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 specifically including all of the last amendment thereto shown on the Major Tenants. Each executed estoppel 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 Purchaser shall be deemed to be a representation satisfactory to Purchaser unless Purchaser provides Seller with written notice within three (3) business days of Purchaser’s receipt of such estoppel certificate of its disapproval of such estoppel certificate and warranty made by the Borrower to the effect that all basis of such disapproval. A “Major Tenant” means each of the conditions precedent following tenants at the Property: Sodexo Operations, LLC and Covance, Inc. Seller’s failure to obtain said estoppel certificates shall not be a default by Seller under this Agreement. Seller has prepared, or caused to be prepared, and Purchaser has reviewed and approved the making forms of such Loans estoppel certificates from the tenants, which were based on the form of estoppel certificate attached hereto as Exhibit D and Seller has remitted, or caused to be remitted, the issuance estoppel certificates, as approved by Purchaser, to all the tenants of such Letters of Credit the Property for signature. Such estoppel certificates prepared by Seller and approved by Purchaser as provided above are referred to, collectively, as “Approved Estoppels”. Notwithstanding the foregoing, in the event the condition described in this Section 9(a)(iii) shall not have been satisfied, with the same effect as delivery either Seller or Purchaser may elect by notice to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated other to extend the Closing Date, for a period not to exceed thirty (30) days in order to satisfy 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 Lendercondition.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as The closing of the Transaction will be subject to the satisfaction of the following conditions precedent having been satisfied (in a manner satisfactory addition to the Agent (and any conditions precedent identified in the case Formal Agreement (as that term is hereinafter defined)) (the “Conditions Precedent”): The parties shall have agreed upon the terms and conditions of any documents, agreements or other deliveries, such documents, agreements and deliveries shall be a formal agreement in form and substance satisfactory to respect of the AgentTransaction (the “Formal Agreement”), which Formal Agreement shall memorialize the provisions of this letter agreement and include industry-standard terms and conditions in each case with the consent respect of the Majority Lenders to Transaction. For greater certainty, the extent required in clauses (a) through (w) hereof or Section 13.2(a)(ii) hereof:
(a) This Formal 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 will contain representations and warranties made hereunder and in customary to transactions like 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 therebyTransaction, including, without limitation pursuant to the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreementlimitation, the Agent shall have received evidence, in form, scope, representations and substance, reasonably satisfactory to the Agent, of all insurance coverage as required warranties 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.
Company (i) The Agent shall have received a copy as to the accuracy and completeness of the certificate or articles of incorporation or other constitutive documentsCompany's internally generated financial statements, 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 dateSeptember 30, 2018, (ii) disclosure of all the Company's material contracts, commitments and liabilities, direct or contingent; a certificate (iii) the physical condition, suitability, ownership and absence of liens, claims and other adverse interests with respect to the Company's assets; (iv) issuance and status of the Secretary Purchased Shares; (e) the absence 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 liabilities with respect to the date of the resolution described in item (B) below, (B) that attached thereto is a true Company and complete copy of a resolution adopted by such Loan Party's Board of Directors (or liabilities incurred in the case ordinary course 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 business since the date of latest audited financial statements; (f) 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 absence 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 condition (financial or otherwise), business, operations, assets, properties, liabilities, profits, assets or prospects or financial position of the Loan Parties as determined by Company; (g) the Agent absence of pending or threatened litigation, claims, investigations or other matters affecting the Transaction; (h) the Company's compliance with laws and regulations applicable to its business and obtaining all licenses and permits required for its business; and (i) the due incorporation, organization, valid existence, good standing and capitalization of the Company. The parties hereby covenant and agree to diligently pursue good faith negotiation of the Formal Agreement. Each of the Purchaser and the Majority Lenders Company shall be satisfied, in their its sole discretion.
(l) The Lenders shall be fully satisfied , with the compliance by results of its due diligence investigations in respect of the Loan Parties with Transaction. The holders of the Company’s Series A Preferred Stock (the “Preferred A Holders”) and the holders of the Company’s common stock shall have executed and delivered to and in favor of the Company and the Purchaser any and all applicable lawsconsents to, statutesand waivers in respect of, 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 Transaction as mandated 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 Amended and Restated Certificate of such LenderIncorporation of the Company (the “Certificate of Incorporation”), (ii) the decision of such Lender to execute August 29, 2018 Series A Convertible Preferred Stock Purchase Agreement between the Company and deliver to the Agent an executed counterpart of this Agreement was made by such Lender independently and without reliance on Preferred A Holders (the Agent or any other Lender as to the satisfaction of any condition precedent set forth in this Section 10.1“Preferred A SPA”), and (iii) all documents sent the August 29, 2018 Investor Rights Agreement between the Company, the Preferred A Holders, and the holders of the Company’s issued and outstanding common stock (the “Rights Agreement”), such consent to such Lender for approvalinclude, inter alia, (x) consent or satisfaction were acceptable to such Lenderthe composition of the Board (as that term is hereinafter defined), (y) consent to the issuance of the Purchased Shares to the Purchaser, and (z) a waiver of the preemptive purchase rights set forth in the Rights Agreement. The boards of directors of each of the Purchaser and the Company shall have approved the Transaction.
Appears in 1 contract
Samples: Binding Letter of Intent (Generex Biotechnology Corp)
Conditions Precedent to Closing. Date This The obligations of each Party to close the transaction contemplated by this Purchase 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 conditions that, on or before the case of Closing Date:
a. Neither Party is prohibited by decree or law from consummating the transaction.
b. There is not pending on the Closing Date any documents, agreements legal action or other deliveries, such documents, agreements and deliveries shall be in form and substance satisfactory to proceeding that prohibits the Agent), in each case with the consent acquisition or sale of the Majority Lenders to Purchased Assets or prohibits Purchaser or Seller from closing the extent required transaction or Purchaser from paying the Purchase Price, or that inhibits or restricts in clauses (a) through (w) hereof any material manner Purchaser’s use, title, or Section 13.2(a)(ii) hereof:enjoyment of the Utility System and Purchased Assets.
(a) This Agreement and c. Each of the other Loan Documents have been executed by each party thereto and each Loan Party shall have Parties hereto has performed and complied with all covenants, agreements and conditions contained herein and in of the other Loan Documents which are undertakings required to be performed or complied with by such Loan Party before or on such Closing Datethem under the terms of this Purchase Agreement.
(b) All representations and warranties made hereunder and d. There is not material adverse change in applicable law, or in the condition or value of the Purchased Assets or the Utility System. For purposes of this Purchase Agreement, a “material adverse change” shall mean any event, condition, development or effect that, either individually or in the aggregate, shall have been, or insofar as can reasonably be foreseen will be, materially adverse to the business operations, assets, value or conditions (financial or otherwise) of the Utility System or the Purchased Assets.
e. All warranties and representations of the other Loan Documents shall be Party are true and correct in all material respects as of the Closing Date as if made on such date (both immediately prior toDate, except to the extent they specifically refer to another date.
f. The Board of County Commissioners of Xxxxxx County, Florida, has, pursuant to Section 163.01(7)(g)4., Florida Statutes, authorized Purchaser’s acquisition of the Utility System, has entered into the Utility Acquisition Interlocal Agreement, and after giving effect tounder the terms of said Utility Acquisition Interlocal Agreement, has assigned or granted to Seller its rights of acquisition under Sections 4.02 (A) and (B) of the FGUA Interlocal Agreement. The exercise of any such extension acquisition rights by the Seller may only be exercised consistently with and subject to the terms of credit)the Utility Acquisition Interlocal Agreement, the FGUA Interlocal Agreement, and in accordance with Section 11. c. of this Purchase Agreement.
g. Seller shall have obtained all necessary consents or authorizations from third parties for the assignment and assumption of the easements and agreements identified in Exhibit “J” attached hereto and incorporated herein by reference.
h. Seller shall have obtained from the Civic Association of Rio Vista, Inc. (c) No Default “HOA”), the release or Event waiver of Default the HOA’s right of first refusal set forth in that certain Special Warranty Deed, dated August 25, 2011, between Civic Association of Rio Vista Utilities, Inc., and the City of Dunnellon, Florida, recorded in Official Records Book 5562, Page 1938, of the Public Records of Xxxxxx County, Florida (the “Deed”); or in the alternative, Seller shall exist have provided to Purchaser satisfactory evidence that the notice required to be delivered by Seller to HOA pursuant to the terms set forth in the Deed was delivered in accordance with the terms of the Deed, and that the HOA failed to give timely written notice of the exercise of its right of first refusal as required pursuant to the terms set forth in the Deed, or otherwise failed under the terms of the Deed to exercise its right of first refusal.
i. Seller shall have executed such contract or contracts for the prosecution of the capital improvement projects to be funded from “Existing Bonds” as identified in Purchaser’s Five-Year CIP, attached hereto as Exhibit “K” and incorporated herein by reference, as are necessary to encumber any unencumbered cash balance remaining in the Seller’s Bond Construction Fund allocable to the Utility System on the Closing Date. Seller covenants and agrees with Purchaser that such Bond Construction Fund cash balance shall not be used by Seller between the Effective Date and the Closing without the prior written consent of Purchaser, or would exist after giving effect for any purpose other than the prosecution of Seller’s capital improvement projects corresponding 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 datePurchaser’s capital improvement projects identified in Purchaser’s Five-Year CIP as being funded from “Existing Bonds”.
(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 j. All necessary consents 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 approvals shall have been satisfactory obtained for the reassignment or transfer from Seller to Purchaser of any cooperative funding agreement or proposed funding commitment from DEP under FDEP Agreement No. LP51030, as administered through the Agent SWFWMD, for the Rainbow Springs Infrastructure Development Project (P113), involving the interconnection of the City of Dunnellon and the Juliette Falls wastewater systems and the refurbishment of the Juliette Falls wastewater treatment plant, such that funding provided under such cooperative agreement or proposed funding commitment can be used by Purchaser to complete the projects funded from the “Grant” as identified in all respectsPurchaser’s Five-Year CIP attached hereto as Exhibit “K”.
(h) k. 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 necessary consents 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 obtained for the reassignment or transfer from Seller to the Agent and the Lenders and there shall have been a resolution satisfactory to the Agent Purchaser 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, vacatedgrant agreements, or stayedrights to enter into such agreements, andassociated with awarded Community Development Block Grant Small Cities funding and related Legislative appropriations, unless otherwise agreed such that funding provided under such grant agreements can be used by Purchaser to complete the Agent, all appeal periods relating to the confirmation order shall have expired, and no appeals (unless consented to by Agent) projects funded from the confirmation order shall be outstanding. All conditions precedent to confirmation and to the "Effective Date" under and “CDBG Grant” as defined identified 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 PostPurchaser’s Five-Confirmation Agreement on or after the Consummation DateYear CIP attached hereto as Exhibit “K”.
(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
Samples: Interlocal Agreement for the Purchase and Sale of Utility Assets
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
Samples: 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
Samples: Purchase and Sale Agreement (American Financial Realty Trust)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as On 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) date hereof:
(a) This Agreement and the other Loan Documents have been executed by each party thereto and each Loan Party The Agent shall have performed received a favorable written opinion of (i) Sonnenschein Nath & Rosenthal, counsel to Stilwell, to the xxxxxx xxx covexxxx xxxse matters sex xxxxx in Exhibit C-1 hereto, (ii)(A) Hogan & Hartson LLP, counsel to Janus, and complied with all covenants(B) in-house counsel to Xxxxx, agreements to the effect and conditions contained herein collectively covering those matters set forth in Exhibit C-2 hereto, and (iii) of Cravath, Swaine & Moore, counsel to the Agent, in each case as to matters rxxxxxably requested by the other Loan Documents which are required Agent and dated the date hereof and addressed to be performed or complied with by the Lenders. The Borrowers hereby instruct their counsel to deliver such Loan Party before or on such Closing Dateopinion to the Agent.
(b) All representations legal matters incident to this Agreement and warranties made the Borrowings hereunder and in the other Loan Documents shall be true satisfactory to the Lenders and correct as of to Cravath, Swaine & Moore, counsel for the Closing Date as if made on such date (both immediately prior to, and after giving effect to, such extension of credit)Agent.
(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 sxxxx 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 documentsincorporation, in each case amended to dateincluding all amendments thereto, of each of the Loan PartiesBorrower, certified as of a recent date by the Secretary of State or other appropriate official of the state or other jurisdiction of its organization incorporation and dated a certificate as to the good standing of such Borrower as of a recent date, from such Secretary of State; (ii) a certificate of the Secretary or an Assistant Secretary of each of the Loan Parties, Borrower dated the Closing Date date hereof and certifying (A) that attached thereto is a true and complete copy of such Loan Party's Bythe by-laws of such Borrower as in effect on the date of such certificate hereof and at all times since a date prior to the date of the resolution resolutions described in item clause (B) below, (B) that attached thereto is a true and complete copy of a resolution resolutions duly adopted by such Loan Party's the Board of Directors (or in the case of a Loan Party that is not a corporation, the equivalent governing body) such Borrower authorizing the execution, delivery and performance of this Agreement the Loan Documents and the other Loan Documents to which it is a party borrowings hereunder, and that such resolution has resolutions have not been modified, rescinded or amended and is are in full force and effect, (C) that such Loan Party's the certificate or articles of incorporation or other constitutive documents of such Borrower have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished hereinabovepursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each of such officer executing any Loan Party's officers executing this Agreement Document or any other Loan Document document delivered in connection herewith or therewith, as applicableon behalf of such Borrower; (iii) a certificate of another of such Loan Party's officers officer as to the incumbency and specimen signature of its Secretarythe Secretary or Assistant Secretary executing the certificate pursuant to (ii) above; and (iv) such other documents as the Lenders or Cravath, Swaine & Moore, counsel for the Agent, may reasonably request.
(jd) The Agent shall have received certificates a certificate, dated the date hereof and signed by a Financial Officer of good standingeach Borrower, existence or its equivalent confirming compliance with respect to each Loan Party certified as the conditions precedent set forth in paragraphs (b) and (c) 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)Section 4.01.
(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.
(we) The Agent shall have received all documents Fees and instrumentsother amounts due and payable on or prior to the date hereof.
(f) There shall be no litigation, including Uniform Commercial Code financing statementsactual or threatened, required by law or reasonably requested by that in the reasonable judgment of the Agent would be likely to be filedaffect materially and adversely the business, registeredassets, published condition (financial or recorded otherwise) or prospects of Stilwell or any of its Subsidiaries.
(g) The Agexx xxxxx have received evidence satisfactory to create or perfect it that the first priority Liens intended to be created under the Loan Documents and all such documents and instruments 2000 Credit Agreement shall have been so filedterminated and all amounts outstanding thereunder, registeredincluding any fees, 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 paid 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 Lenderfull.
Appears in 1 contract
Samples: Competitive Advance and Revolving Credit Facility Agreement (Stilwell Financial Inc)
Conditions Precedent to Closing. Date This Agreement 5.1 The performance of Party A’s obligations regarding the transaction shall become effective at such time as be conditioned upon the satisfaction of all of the following conditions, unless Party A waives such conditions precedent having been satisfied in a manner satisfactory writing or agrees to postpone the Agent (and in the case fulfillment of any documents, agreements or other deliveries, waive 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:
(a1) This Agreement and the other Loan Documents its appendices (if any) have been formally 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.Parties;
(b2) All The representations and warranties made hereunder and in the other Loan Documents shall be section 6 of this Agreement are accurate, 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).complete in all material respects;
(c3) No Default or Event of Default shall exist The financial, tax, business and legal due diligences 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 Target Company conducted by Party A 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, completed and the results of such examination due diligence are accepted and audit recognized by Party A;
(4) This Agreement and appraisal shall all the transactions contemplated herein have been satisfactory to approved and authorized by the Agent in all respects.shareholders and/or the board of directors of Party A (if applicable);
(h5) All proceedings taken in connection with The shareholders of the Target Company have signed relevant shareholder resolutions and officially authorized 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 performance of transactions contemplated herein; The Company has passed its new Articles of Incorporation, completed the AIC registration of change procedures for the transfer of the equity hereunder and completed the registration of change for the Target Company’s Article of Association and board with AIC at Party A’s request, and the Target Company has obtained and provided to which it is a party and that such resolution Party A the newly issued business permits ;
(6) There has not been modified, rescinded any known or amended and is in full force and effect, (C) that such Loan Party's certificate rationally expected event or articles of incorporation or other constitutive documents have not been amended since situation which has material adverse effect on the date transactions under this Agreement as of the last amendment thereto shown Closing Date. No event or change that has material adverse effect on the certificate assets, business, finance situation and staff 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.Target Company has occurred;
(j7) 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 actions of the state Transferor that have been taken or other jurisdiction of incorporation or organization and in each other jurisdiction listed on Schedule 10.1(j).
(k) There shall are to 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 taken 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 complete the transactions contemplated by under this Agreement and the other Loan Documents have been obtainedAgreement, and remain in full force all the certificates, papers 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 other documents needed for completion of the Agent that restrainssame, 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 Party A;
(8) The Existing Shareholder’s execution of this Agreement and performance 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 obligations thereunder have been satisfiedapproved by relevant governmental authorities and third parties (if necessary), with the same effect and as delivery to the Agent and the Lenders of a certificate signed by a Responsible Officer of the Borrower, dated the Closing Date, (a) there have not been any pending or potential actions or proceedings taken by PRC governmental authorities to such effect. Execution limit or forbid the completion of the transactions under this Agreement, and delivery to (ii) there have not been any laws and regulations promulgated by any competent PRC governmental authorities which may cause the Agent by a Lender of a counterpart completion 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 Lenderillegal.
Appears in 1 contract
Samples: Equity Transfer Agreement (ChinaNet Online 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 Each party's obligation 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 consummate the transactions contemplated by this Agreement and is subject to the satisfaction or waiver by the other Loan Documents party of the following conditions:
a) All requirements set forth in this Agreement shall be complied with at or prior to Closing, unless otherwise specifically set forth that the requirement may be complied with subsequent to the Closing Date.
b) All government approvals, if any, required for the consummation of the transactions contemplated herein have been obtained, and remain in full force and effect; all applicable waiting periods .
c) No action or proceeding by or before any governmental authority shall have expired without any action being taken by any competent authority; been instituted or threatened (and no law not subsequently dismissed, settled or regulation shall be applicable in the judgment of the Agent that restrainsotherwise terminated) which might restrain, prevents prohibit or imposes materially adverse conditions upon any of the Loan Documents or invalidate any of the transactions contemplated therebyby this Agreement, other than an action or proceeding instituted or threatened by a party or any of its affiliates.
(qd) The terms of all sourcing arrangements among the Loan Parties representations and their suppliers shall have been fully disclosed to the Agent warranties contained in Section 10(SELLER'S REPRESENTATIONS AND WARRANTIES), Section 11(SELLER'S ADDITIONAL REPRESENTATIONS AND LIMITED WARRANTIES) and the Lenders and there shall have been a resolution satisfactory to the Agent of any liens arising from any such supply arrangements.
Section 12 (rBUYER'S REPRESENTATIONS AND WARRANTIES) 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 true and to correct in all material respects on the "Effective Date" under Closing Date as 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.
e) No amendment to Exhibit K has resulted in a material adverse effect the result of which has not been addressed by Section 8 (w) The Agent shall have received all documents and instrumentsTERMINATION FOR MATERIAL DEFECT); Section 9 (DAMAGE OR CONDEMNATION PRIOR TO CLOSING; or Section 13 (BUYER'S INVESTIGATION AND RIGHT TO CANCEL), including Uniform Commercial Code financing statementseither individually or in the aggregate, required by law on the Property, the operation 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 maintenance of the Agent. The acceptance by Pipeline Interests or 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 financial performance 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 LenderProperty.
Appears in 1 contract
Samples: Asset Sale Agreement (Plains All American Pipeline Lp)
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
Samples: Asset Purchase Agreement (Arena Pharmaceuticals Inc)
Conditions Precedent to Closing. Date This Agreement Section 2 hereof shall become effective at such time as on the following conditions precedent having been satisfied in date (the “Effective Date”) when the Administrative Agent shall have received:
3.1 a manner counterpart (or counterparts) of this Amendment, executed and delivered by the Borrower and each Lender, or other evidence satisfactory to the Administrative Agent of the execution and delivery of this Amendment by such parties;
3.2 a counterpart (or counterparts) of the Joinder Agreement, dated as of the Effective Date, executed and in delivered by the case of any documentsBorrower and each Lender, agreements or other deliveries, such documents, agreements and deliveries shall be in form and substance evidence satisfactory to the Agent), in each case with the consent Administrative Agent of the Majority Lenders execution and delivery of the Joinder Agreement by such parties;
3.3 a Note, duly executed and delivered by the Borrower to each requesting Lender dated the extent required in clauses Effective Date;
3.4 certified resolutions (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 equivalent in the other Loan Documents which are required to be performed or complied with by such Loan Party before or applicable jurisdiction) on such Closing Date.
(b) All representations and warranties made hereunder and in the other Loan Documents shall be true and correct as behalf 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 Borrower authorizing 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 into the transactions contemplated therebyby this Amendment, including, without limitation pursuant to as in effect on the Fee Letter.
(f) To the extent not previously provided under the DIP Loan Agreement, the Agent shall have received evidenceEffective Date and, in form, scope, form and substance, reasonably satisfactory to the Administrative Agent;
3.5 a certification from a Responsible Officer that the Borrower’s Constituent Documents have not been amended, of all insurance coverage as required by amended and restated, supplemented or otherwise modified since 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 Borrower last provided 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 thereof to the Administrative 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 Constituent 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 effect as of the Agent that restrainsEffective Date, prevents together with certificates of good standing (or imposes materially adverse conditions upon any other similar instruments) of the Loan Documents or any of the transactions contemplated thereby.Borrower; and
(qa) 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 other amounts due and the issuance of all Letters of Credit payable on or prior to be issued (including the Existing Letters of Credit), in each case on the date of hereof, and immediately subsequent to the "Effective Date" of the Borrower's Plan of Reorganization(b) Cadwalader, 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 Xxxxxxxxxx & Xxxx LLP, as Administrative Agent. Without limiting the generality of the foregoing’s special counsel, 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 its fees and disbursements invoiced at least two (2) 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 Datehereof.
(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
Samples: Revolving Credit Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Closing. Date This Agreement shall become effective at such time as The Company's obligation to complete the purchase of the Shares will be subject to 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 all representations and warranties of Manloe and Hocking will be true and correct in all material respects on 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 there shall have been no material adverse change to the Business between the date of this agreement 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).Date;
(c) No Default Manloe will have entered into the Manufacturing and Marketing Agreement with Jazor prior to 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.; and
(d) The Agent Manloe will have delivered an opinion of its attorney as to each of the following matters:
(i) Manloe has been duly incorporated and organized and is validly subsisting under the laws of the State of Nevada, it has the corporate power to own or lease its properties and to carry on its business that is now being conducted by it and is in good standing with respect to all filings with the appropriate corporate authorities;
(ii) the issued and authorized capital of Manloe is as set out in this agreement and all issued shares have been validly issued as fully paid and non- assessable;
(iii) all necessary approvals and all necessary steps and corporate proceedings have been obtained or taken to permit the Shares to be duly and validly registered in the name of the Company;
(iv) the execution of this agreement, the transfer of the Shares to Company and the Lenders shall have received such opinions of counsel (concerning, among other things, entry appointment 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 Company's nominees to the Agentboard of directors, the Lenders, have been duly and their respective counselvalidly authorized by all required corporate proceedings of Manloe and its shareholders and directors.
(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 Hocking will have entered into an Intercreditor Agreement a three year employment agreement with the administrative agent for the Term Debt substantially Manloe 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 employment agreement attached hereto 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.Schedule C.
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