Conditions Precedent to Loans and Letters of Credit 32 Section 3.1 Conditions To Effectiveness.................................................32 Section 3.2 Each Credit Event...........................................................33 Section 3.3 Delivery of Documents.......................................................34
Conditions Precedent to the Obligations of the Company to sell Shares at the Closing. The Company’s obligation to sell and issue to the Purchaser the Allocated Shares at the Closing is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any of which may be waived by the Company:
Conditions Precedent to the Effectiveness of this Amendment This Amendment shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied or waived (the “Amendment No. 1 Effective Date”) by the Administrative Agent:
Conditions Precedent to Each Loan and Letter of Credit The obligation of each Lender on any date (including the Closing Date) to make any Loan and of each L/C Issuer on any date (including the Closing Date) to Issue any Letter of Credit is subject to the satisfaction of each of the following conditions precedent:
Conditions Precedent to the Obligation of the Company to Close and to Sell the Securities. The obligation hereunder of the Company to close and issue and sell the Securities to the Purchasers at the Closing Date is subject to the satisfaction or waiver, at or before the Closing of the conditions set forth below. These conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion.
Conditions Precedent to the Obligations of the Purchasers The obligation of each Purchaser to acquire Securities at the Closing is subject to the satisfaction or waiver by such Purchaser, at or before the Closing, of each of the following conditions:
Conditions Precedent to All Loans and Letters of Credit In addition to satisfaction or waiver of the conditions precedent contained in Section 6.1, the obligations of (i) Lenders to make any Loans and (ii) the Issuing Bank to issue Letters of Credit are each subject to the further conditions precedent that: (a) no Default or Event of Default shall exist as of the date of the making of such Loan or date of issuance of such Letter of Credit or would exist immediately after giving effect thereto, and no violation of the limits described in Section 2.16 would occur after giving effect thereto; (b) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is a party, shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of the making of such Loan or date of issuance of such Letter of Credit with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder; (c) in the case of the borrowing of Revolving Loans, the Administrative Agent shall have received a timely Notice of Borrowing, in the case of a Swingline Loan, the Swingline Lender shall have received a timely Notice of Swingline Borrowing (or other notice as permitted pursuant to Section 2.5(b)(i) for requesting a Swingline Loan or the borrowing shall be an Automatic Swingline Borrowing pursuant to Section 2.5(b)(ii)), and in the case of the issuance of a Letter of Credit the Issuing Bank and the Administrative Agent shall have received a timely request for the issuance of such Letter of Credit; and (d) that any such borrowing is permitted under any Senior Notes Indebtedness and/or any Senior Notes Indenture relating thereto. Each Credit Event shall constitute a certification by the Borrower to the effect set forth in the preceding sentence (both as of the date of the giving of notice relating to such Credit Event and, unless the Borrower otherwise notifies the Administrative Agent prior to the date of such Credit Event, as of the date of the occurrence of such Credit Event). In addition, the Borrower shall be deemed to have represented to the Administrative Agent and the Lenders at the time any Loan is made or any Letter of Credit is issued that all conditions to the making of such Loan or issuing of such Letter of Credit contained in this Article VI have been satisfied. Unless set forth in writing to the contrary, the making of its initial Loan by a Lender shall constitute a certification by such Lender to the Borrower and to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, that the conditions precedent for initial Loans set forth in Sections 6.1 and 6.2 that have not previously been waived by the Lenders in accordance with the terms of this Agreement have been satisfied.
Conditions Precedent to the Obligations of the Company The obligation hereunder of the Company to issue and sell the shares of Common Stock to the Investor incident to each Closing is subject to the satisfaction, or waiver by the Company, at or before each such Closing, of each of the conditions set forth below.
Conditions Precedent to the Initial Extension of Credit The obligation of each Lender to make the initial extensions of credit provided for hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent set forth on Schedule 3.1 to this Agreement (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent).
Conditions Precedent to the Effectiveness of this Agreement The effectiveness of this Agreement is subject to the satisfaction of, or waiver in writing by IBM Credit of compliance with, the following conditions precedent on or prior to September 13, 1996:
(A) this Agreement executed and delivered by Customer and IBM Credit and receipt by IBM Credit of all attachments hereto in form and substance satisfactory to IBM Credit in its sole discretion;
(B) (i) copies of the resolutions of the Board of Directors of Customer in form and substance satisfactory to IBM Credit in its sole and absolute discretion certified by the secretary or assistant secretary of Customer authorizing the execution, delivery and performance of this Agreement and each Other Agreement executed and delivered in connection herewith, (ii) a certificate of the secretary or an assistant secretary of Customer, in form and substance satisfactory to IBM Credit in its sole and absolute discretion, certifying the names and true signatures of the officers of Customer authorized to sign this Agreement and the Other Agreements and (iii) copies of the articles of incorporation and by-laws of Customer in form and substance satisfactory to IBM Credit in its sole and absolute discretion certified by the secretary or assistant secretary of Customer;
(C) certificates dated as of a recent date from the Secretary of State or other appropriate authority evidencing the good standing of Customer in the jurisdiction of its organization and in each other jurisdiction where the ownership or lease of its property or the conduct of its business requires it to qualify to do business unless the failure to so qualify could not reasonably be expected to have a Material Adverse Effect;
(D) copies of all approvals and consents from any Person, in each case in form and substance satisfactory to IBM Credit in its sole and absolute discretion, which are required to enable Customer to authorize, or required in connection with, (a) the execution, delivery or performance of this Agreement and each of the Other Agreements, and (b) the legality, validity, binding effect or enforceability of this Agreement and each of the Other Agreements and (c) the execution delivery or performance and legality, validity, binding effect or enforceability of the restructuring contemplated in connection herewith;
(E) a lockbox agreement executed by Customer and each Bank, in form and substance satisfactory to IBM Credit;
(F) a contingent blocked account agreement executed by Customer and each Bank in form and substance satisfactory to IBM Credit;
(G) the security interest of the Credit Managers Association shall have been released, the security agreement between Customer and the Credit Managers Association shall have been terminated, UCC termination statements relating thereto shall have been filed, appropriate filings shall have been made terminating any filings made by the Credit Managers Association with the United States Patent and Trademark Office and the United States Copyright Office, all in form and substance satisfactory to IBM Credit in its sole and absolute discretion;
(H) a favorable opinion of counsel for Customer, satisfactory to IBM Credit, in form and substance satisfactory to IBM Credit and Customer;
(I) UCC-1 financing statements for each jurisdiction reasonably requested by IBM Credit executed by Customer and each guarantor whose guaranty to IBM Credit is intended to be secured by a pledge of its assets and all other statements, instruments and act (including, possession by IBM Credit) necessary to perfect IBM Credit's security interest in the Collateral;
(J) Customer shall have delivered to IBM Credit convertible preferred stock of the Customer and warrants to purchase common stock of Customer, in form and substance satisfactory to IBM Credit in its sole and absolute discretion;
(K) Customer and IBM Credit shall have executed a registration rights agreement in form and substance satisfactory to IBM Credit in its sole and absolute discretion, which agreement shall include terms providing for a fee to IBM Credit in an amount equal to $3,000,000 in the event the securities obtained by IBM Credit pursuant to the recapitalization (including those securities set forth in paragraph J above) are not subject to an effective registration statement on or prior to a date to be agreed upon by Customer and IBM Credit;
(L) The existing creditors of Customer (other than IBM Credit) shall have either (i) converted their claims against Customer for common stock of Customer or (ii) released their claims against Customer for cash in an amount not to exceed $500,000 in the aggregate, other than current claims payable by customer in an amount satisfactory to IBM Credit, all in form and substance satisfactory to IBM Credit in its sole and absolute discretion;
(M) All acts necessary or desirable, in the sole and absolute discretion of IBM Credit, to the recapitalization of Customer outlined in the Private Placement Memorandum dated August 9, 1996 shall have occurred and be in full force and effect;
(N) the statements, certificates, documents, instruments, financing statements, agreements and information set forth in Attachment A and Attachment B; and
(O) all such other statements, certificates, documents, instruments, financing statements, agreements and other information with respect to the matters contemplated by this Agreement as IBM Credit shall have reasonably requested.