Common use of Conditions Precedent to Clause in Contracts

Conditions Precedent to. Amendment The satisfaction of each of the following, on or before the Fourth Amendment Closing Deadline, unless waived or deferred by Foothill in its sole discretion, shall constitute conditions precedent to the effectiveness of this Amendment and each and every provision hereof; a. Foothill shall have received a certificate from the Secretary of Phoenix attesting to the incumbency and signatures of authorized officers of Phoenix and to the resolutions of Phoenix's Board of Directors authorizing its execution and delivery of this Amendment and the other Loan Documents to which it is a party and contemplated in this Amendment and the performance of this Amendment, the Agreement as amended by this Amendment, and such other Loan Documents, and authorizing specific officers of Phoenix to execute and deliver the same; b. Foothill shall have received a certificate from the Secretary of PNAC attesting to the incumbency and signatures of authorized officers of PNAC and to the resolutions of PNAC 'S board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documents, and authorizing specific officers of PNAC to execute and deliver the same; c. Foothill shall have received a certificate from the Secretary of AmeriConnect attesting to the incumbency and signatures of authorized officers of AmeriConnect and to the resolutions of board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documents. and authorizing specific officers of AmeriConnect to execute and deliver the same; d. Foothill shall have received an opinion of counsel to Borrower in form and substance satisfactory to Foothill in its reasonable discretion; e. The representations and warranties in this Amendment, the Agreement as amended by this Amendment, and the other Loan Documents shall be true and correct in all respects on and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely to an earlier date);

Conditions Precedent to. Amendment the Seller's and Founder's Obligations. The satisfaction obligation of the Seller and Founder to proceed with the First Closing and perform their respective obligations under Article 6 is conditional upon and subject to the satisfaction, or the express waiver in writing by the Seller and Founder, on or prior to the Long Stop Date, of each of the following, on or before the Fourth Amendment Closing Deadline, unless waived or deferred by Foothill in its sole discretion, shall constitute conditions precedent to the effectiveness of this Amendment and following conditions: (a) each and every provision hereof; a. Foothill shall have received a certificate from the Secretary of Phoenix attesting to the incumbency and signatures of authorized officers of Phoenix and to the resolutions of Phoenix's Board of Directors authorizing its execution and delivery of this Amendment and the other Loan Documents to which it is a party and contemplated in this Amendment and the performance of this Amendment, the Agreement as amended by this Amendment, and such other Loan Documents, and authorizing specific officers of Phoenix to execute and deliver the same; b. Foothill shall have received a certificate from the Secretary of PNAC attesting to the incumbency and signatures of authorized officers of PNAC and to the resolutions of PNAC 'S board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documents, and authorizing specific officers of PNAC to execute and deliver the same; c. Foothill shall have received a certificate from the Secretary of AmeriConnect attesting to the incumbency and signatures of authorized officers of AmeriConnect and to the resolutions of board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documents. and authorizing specific officers of AmeriConnect to execute and deliver the same; d. Foothill shall have received an opinion of counsel to Borrower in form and substance satisfactory to Foothill in its reasonable discretion; e. The representations and warranties in this Amendmentmade by the Buyer under Article 8 being true, accurate and not misleading as of the Agreement as amended by this Amendment, and the other Loan Documents shall be true and correct in all respects on date hereof and as of the First Closing Date unless otherwise expressly provided herein; (b) the Buyer having performed and complied with all agreements, undertakings, obligations and covenants required by this Agreement to be performed or complied with by the Buyer at or prior to the First Closing Date; (c) the Buyer having taken all necessary corporate actions for, and obtained all necessary internal approvals (i.e. board resolutions as required under its constitutional documents and approvals by its chief executive officer) duly authorizing, the execution and performance of this Agreement and the consummation of the First Tranche; (d) any and all approvals necessary to permit the First Closing to occur by competent Governmental Authorities having been duly obtained, in each case free and clear of any conditions; (e) the Buyer having delivered to the Seller a copy or copies, certified by a director or the legal counsel of the Buyer to be copies, of the minutes of the board meetings or the written resolutions of the board of directors of the Buyer and Hershey resolving that the First Tranche be approved and authorizing the execution and performance by the Buyer of the Transaction Agreements and the consummation of the First Tranche; (f) the Buyer having delivered to the Seller an original counterpart of each of the Transaction Agreements to which the Buyer is a party, duly executed by the Buyer, as applicable; (g) the Seller having received each of the closing deliverables set forth in Article 6.4; (h) no later than thirty (30) Business Days after the date hereof, as though made on such date (except the Buyer having delivered to the extent Seller an account statement duly issued by a bank in the USA which shows that such representations and warranties relate solely the Buyer has sufficient funds in the relevant account to an earlier date);make the payments contemplated hereunder; and (i) the Buyer having duly deposited the First Tranche Payment into the Offshore Escrow Account no later than five (5) Business Days after the PRC Ministry of Commerce has issued its official approval of the First Tranche.

Conditions Precedent to. Amendment the Making of the Initial Revolving Credit Loan (Xxxxxx) and the Issuing of the Initial Letter of Credit. The satisfaction obligation of the Banks to make the initial Revolving Credit Loans (Xxxxxx) contemplated by this Agreement and the obligation of the Issuing Bank to issue the initial Letter of Credit issued after the date of this Agreement contemplated by this Agreement are each subject to the condition precedent that the Agent, the Banks and the Issuing Bank shall have received from Xxxxxx and the Guarantors on or before the date of this Agreement the following, each dated such day, in form and substance satisfactory to the Agent and its counsel: (a) A Revolving Credit Note (Xxxxxx), duly executed by Xxxxxx and payable to the order of each of the following, on or before Banks. (b) Certified (as of the Fourth Amendment Closing Deadline, unless waived or deferred by Foothill in its sole discretion, shall constitute conditions precedent to the effectiveness date of this Amendment and each and every provision hereof; a. Foothill shall have received a certificate from the Secretary Agreement) copies of Phoenix attesting to the incumbency and signatures of authorized officers of Phoenix and to the resolutions of Phoenix's the Board of Directors of Xxxxxx authorizing its execution the Revolving Credit Loans (Xxxxxx) and the Letters of Credit and authorizing and approving this Agreement and the other Loan Documents and the execution, delivery and performance thereof and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents. (c) Certified (as of the date of this Amendment Agreement) copies of the resolutions of the Boards of Directors and the shareholders of each of the Guarantors, authorizing and approving this Agreement, their Guaranties and any other Loan Document applicable to the Guarantors, and the execution, delivery and performance thereof and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, their Guaranties and the other Loan Documents. (d) A certificate of the Secretary or an Assistant Secretary (attested to by another officer) of Xxxxxx certifying: (i) the names and true signatures of the officer or officers of Xxxxxx authorized to sign this Agreement, the Revolving Credit Notes (Xxxxxx) and the other Loan Documents to which it is be delivered hereunder on behalf of Xxxxxx; and (ii) a party copy of Xxxxxx'x by-laws as complete and contemplated in correct on the date of this Amendment Agreement. (e) A Certificate of the Secretary or an Assistant Secretary (attested to by another officer) of each of the Guarantors certifying (i) the names and true signatures of the officer or officers of the Guarantors authorized to sign this Agreement, their Guaranties and any other Loan Documents to be delivered hereunder on behalf of the Guarantors; (ii) a copy of each of the Guarantors' by-laws as complete and correct on the date of this Agreement; and (iii) the stock ownership of each Guarantor. (f) Copies of the certificate of incorporation and all amendments thereto of Xxxxxx and the performance Guarantors certified in each case by the Secretary of State (or equivalent officer) of the state of incorporation of each of Xxxxxx and the Guarantors and a certificate of existence and good standing with respect to Xxxxxx and the Guarantors from the Secretary of State (or equivalent officer) of the state of incorporation of the Borrower and the Guarantors) and from the Secretary of State (or equivalent officer) of any state in which Xxxxxx or the Guarantors are authorized to do business. (g) An opinion of (i) Ruskin, Moscou, Xxxxx & Faltischek, P.C., counsel for the Borrower and the Guarantors as to certain matters referred to in Article IV hereof and as to such other matters as the Agent or its counsel may reasonably request and (ii) of Xxxxxx & Hanger, L.L.P. with respect to Sedeco and (iii) of Xxxxxxx, Carton & Xxxxxxx with respect to SMX, in each case, concerning such matters as the Agent or its counsel may reasonably request. (h) From each of the Guarantors, an executed Guaranty. (i) From Xxxxxx, copies of all of Xxxxxx'x credit agreements, loan agreements, indentures, mortgages and other documents relating to the extension of credit. (j) From Xxxxxx, (x) the fees and expenses to be paid pursuant to this Agreement, and (y) those fees, charges and expenses as Xxxxxx, the Banks and the Agent may mutually agree. (k) The Agent and the Banks shall, prior to the date of this AmendmentAgreement, have completed their due diligence reviews of Xxxxxx, the Agreement as amended by this Amendment, results of which shall be satisfactory to the Agent and such other Loan Documents, the Banks in their sole discretion. (l) The following statements shall be true and authorizing specific officers of Phoenix to execute and deliver the same; b. Foothill Agent shall have received a certificate from signed by the Secretary President or Chief Financial Officer of PNAC attesting to Xxxxxx and each Guarantor dated the incumbency and signatures of authorized officers of PNAC and to the resolutions of PNAC 'S board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documentsdate hereof, and authorizing specific officers of PNAC to execute and deliver the same;stating that: c. Foothill shall have received a certificate from the Secretary of AmeriConnect attesting to the incumbency and signatures of authorized officers of AmeriConnect and to the resolutions of board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documents. and authorizing specific officers of AmeriConnect to execute and deliver the same; d. Foothill shall have received an opinion of counsel to Borrower in form and substance satisfactory to Foothill in its reasonable discretion; e. (i) The representations and warranties contained in Article IV of this Amendment, the Agreement as amended by this Amendment, and in the other Loan Documents shall be are true and correct in all respects on and as of such date; and (ii) No Default or Event of Default has occurred and is continuing, or would result from the date hereofmaking of the initial Revolving Credit Loans (Xxxxxx) or the issuance of the initial Letter of Credit, as though made on such date applicable. (except m) All legal matters incident to this Agreement and the Loan transactions contemplated hereby shall be satisfactory to Cullen and Xxxxxx, counsel to the extent that Agent. (n) Receipt by the Agent of such representations and warranties relate solely to an earlier date);other approvals, opinions or documents as the Agent or its counsel may reasonably request.

Conditions Precedent to. Amendment The satisfaction of each the Making of the followingInitial Revolving Credit Loan, the Issuing of the Initial Letter of Credit, the Issuing of the Initial Import Letter of Credit and the Creation of the Initial Bankers Acceptance. The obligation of the Bank to make the initial Revolving Credit Loans contemplated by this Agreement and the obligation of the Bank to issue the initial Letter of Credit issued on or after the date of this Agreement, to issue the initial Import Letter of Credit issued on or after the date of this Agreement and create the initial Bankers Acceptance all as contemplated by this Agreement, are each subject to the condition precedent that the Bank shall have received from the Borrower and the Guarantors on or before the Fourth Amendment Closing Deadlinedate of this Agreement the following, unless waived or deferred by Foothill each dated such day, in its sole discretion, shall constitute conditions precedent form and substance satisfactory to the effectiveness Bank and its counsel: (a) Revolving Credit Note, duly executed by the Borrower and payable to the order of the Bank. (b) Certified (as of the date of this Amendment and each and every provision hereof; a. Foothill shall have received a certificate from the Secretary Agreement) copies of Phoenix attesting to the incumbency and signatures of authorized officers of Phoenix and to the resolutions of Phoenix's the Board of Directors of the Borrower authorizing its execution the Loans, the Bankers Acceptances, the Letters of Credit and delivery the Import Letters of Credit and authorizing and approving this Amendment Agreement and the other Loan Documents to which it the Borrower is a party and contemplated in the execution, delivery and performance thereof and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment Agreement and the performance of this Amendment, the Agreement as amended by this Amendment, and such other Loan Documents. (c) Certified (as of the date of this Agreement) copies of the resolutions of the Boards of Directors and the shareholders of each of the Guarantors, authorizing and approving this Agreement, their Guaranties and any other Loan Document applicable to the Guarantors, and authorizing specific the execution, delivery and performance thereof and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, their Guaranties and the other Loan Documents. (d) A certificate of the Secretary or an Assistant Secretary (attested to by another officer) of the Borrower certifying: (i) the names and true signatures of the officer or officers of Phoenix the Borrower authorized to execute sign this Agreement, the Note and deliver the same;other Loan Documents to be delivered hereunder on behalf of the Borrower; and (ii) a copy of the Borrower's by-laws as complete and correct on the date of this Agreement. b. Foothill (e) A Certificate of the Secretary or an Assistant Secretary (attested to by another officer) of each of the Guarantors certifying (i) the names and true signatures of the officer or officers of the Guarantors authorized to sign this Agreement, their Guaranties and any other Loan Documents to be delivered hereunder on behalf of the Guarantors; (ii) a copy of each of the Guarantors' by-laws as complete and correct on the date of this Agreement; and (iii) the stock ownership of each Guarantor. (f) Copies of the certificate of incorporation and all amendments thereto of the Borrower and the Guarantors certified in each case by the Secretary of State (or equivalent officer) of the state of incorporation of each of the Borrower and the Guarantors and a certificate of existence and good standing with respect to the Borrower and the Guarantors from the Secretary of State (or equivalent officer) of the state of incorporation of the Borrower and the Guarantors and from the Secretary of State (or equivalent officer) of any state in which the Borrower or the Guarantors are authorized to do business. (g) An opinion of Kressel, Rothlein, Walsh and Roth LLC, counsel for the Borrower and the Guarantors as tx xxxtain xxxxers referred to in Article IV hereof and as to such other matters as the Bank or its counsel may reasonably request. (h) From each of the Guarantors, an executed Guaranty. (i) From the Borrower and each Guarantor, copies of all of the Borrower's and such Guarantor's credit agreements, loan agreements, indentures, mortgages and other documents relating to the extension of credit. (j) From the Borrower, (x) a commitment fee equal to $45,000.00, and (y) the fees and expenses to be paid pursuant to this Agreement. (k) Evidence that the Bank shall, prior to the date of this Agreement, have completed its due diligence review of the Borrower and Guarantors, the results of which shall be satisfactory to the Bank in its sole discretion. (l) Evidence that the following statements shall be true and the Bank shall have received a certificate from signed by the Secretary of PNAC attesting to the incumbency and signatures of authorized officers of PNAC and to the resolutions of PNAC 'S board of directors President or equivalent governing body authorizing its execution and delivery Chief Financial Officer of the Loan Documents to which it is a party and contemplated in this Amendment and Borrower dated the performance of such Loan Documentsdate hereof, and authorizing specific officers of PNAC to execute and deliver the same;stating that: c. Foothill shall have received a certificate from the Secretary of AmeriConnect attesting to the incumbency and signatures of authorized officers of AmeriConnect and to the resolutions of board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documents. and authorizing specific officers of AmeriConnect to execute and deliver the same; d. Foothill shall have received an opinion of counsel to Borrower in form and substance satisfactory to Foothill in its reasonable discretion; e. (i) The representations and warranties contained in Article IV of this Amendment, the Agreement as amended by this Amendment, and in the other Loan Documents shall be are true and correct in all respects on and as of such date; and (ii) No Default or Event of Default has occurred and is continuing, or would result from the date hereofmaking of the initial Revolving Credit Loans or the issuance of the initial Letter of Credit, the initial Import Letter of Credit or the initial Bankers Acceptance, as though made on such date applicable. (except m) Evidence that all schedules, documents, exhibits, certificates and other information provided to the extent Bank pursuant to or in connection with this Agreement shall be satisfactory to the Bank and its counsel in all respects. (n) Evidence that such representations all legal matters incident to this Agreement and warranties relate solely the transactions contemplated hereby shall be satisfactory to an earlier date);Cullen and Dykman LLP, counsel to the Bank. (o) Such other approvals, xxxxxons or documents as the Bank or its counsel may reasonably request.

Conditions Precedent to. Amendment The EACH INCREMENTAL CREDIT EXTENSION DATE Each Incremental Term Loan and each Revolving Credit Commitment Increase shall not become effective prior to the satisfaction of all of the following conditions precedent: (a) The Administrative Agent shall have received on or prior to the Incremental Credit Extension Date each of the following, on each dated as of such Incremental Credit Extension Date unless otherwise indicated or before agreed to by the Fourth Amendment Closing Deadline, unless waived or deferred by Foothill Administrative Agent and each in its sole discretion, shall constitute conditions precedent form and substance satisfactory to the effectiveness Administrative Agent: (i) written commitments duly executed by existing Lenders (or their Affiliates or Approved Funds) or Eligible Assignees in an aggregate amount equal to the amount of the proposed Incremental Term Loan or Revolving Credit Commitment Increase (as agreed between the Borrower and the Administrative Agent but in any case not to exceed, in the aggregate, the maximum amount set forth in Section 2.1(b)) and, in the case of each such Eligible Assignee that is not an existing Lender, an assumption agreement in form and substance satisfactory to the Administrative Agent and duly executed by the Borrower, the Administrative Agent and such Eligible Assignee; (ii) an amendment to this Amendment Agreement (including to Schedule I), effective as of such Incremental Credit Extension Date and executed by the Borrower and the Administrative Agent, to the extent necessary to implement terms and conditions of such Incremental Term Loan or Revolving Credit Commitment Increase as agreed by the Borrower and the Administrative Agent; (iii) certified copies of resolutions of the Board of Directors of the Borrower and each Guarantor approving the consummation of such Incremental Term Loan or Revolving Credit Commitment Increase and every provision hereofthe execution, delivery and performance of the corresponding amendments to this Agreement and the other documents to be executed in connection therewith; a. Foothill (iv) a favorable opinion of counsel for the Borrower and each Guarantor, addressed to the Administrative Agent, the Lenders and the Issuers and in form and substance and from counsel reasonably satisfactory to the Administrative Agent; and (v) such other documents as the Administrative Agent may reasonably request or as any Lender participating in such Incremental Term Loan or Revolving Credit Commitment Increase may require as a condition to its commitment therein. (b) The Administrative Agent shall have received a certificate from a Responsible Officer of the Secretary of Phoenix attesting Borrower, certifying that on the Incremental Credit Extension Date and immediately after giving effect to the incumbency and signatures Incremental Term Loans or Revolving Credit Commitment Increase, as applicable, the Borrower shall be in compliance with the financial covenants contained in Article V, in each case determined on a pro forma basis after giving effect to such Incremental Term Loans or Revolving Credit Commitment Increase, as applicable, as of authorized officers the last day of Phoenix and the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered to the resolutions of Phoenix's Board of Directors authorizing its execution and delivery of this Amendment and the other Loan Documents Administrative Agent pursuant to which it is a party and contemplated Sections 5.1(a) or (b), as applicable, in this Amendment and the performance of this Amendment, the Agreement as amended by this Amendment, and such other Loan Documents, and authorizing specific officers of Phoenix to execute and deliver the same; b. Foothill shall have received a certificate from the Secretary of PNAC attesting to the incumbency and signatures of authorized officers of PNAC and to the resolutions of PNAC 'S board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documents, and authorizing specific officers of PNAC to execute and deliver the same; c. Foothill shall have received a certificate from the Secretary of AmeriConnect attesting to the incumbency and signatures of authorized officers of AmeriConnect and to the resolutions of board of directors or equivalent governing body authorizing its execution and delivery of the Loan Documents to which it is a party and contemplated in this Amendment and the performance of such Loan Documents. and authorizing specific officers of AmeriConnect to execute and deliver the same; d. Foothill shall have received an opinion of counsel to Borrower each case in form and substance and with supporting documentation reasonably satisfactory to Foothill in its reasonable discretion;the Administrative Agent. e. The representations and warranties in this Amendment(c) There shall have been paid to the Administrative Agent, for the Agreement as amended by this Amendment, account of itself and the other Loan Documents shall be true and correct in all respects on and as of the date hereofLenders, as though applicable, all fees and expenses (including reasonable fees and expenses of counsel) due and payable on or before such Incremental Credit Extension Date. (d) The conditions precedent set forth in Section 3.2 shall have been satisfied both before and after giving effect to such Incremental Term Loans or Revolving Credit Commitment Increase. (e) Such Incremental Term Loans or Revolving Credit Commitment Increase shall have been made on such date (except to the extent that such representations terms and warranties relate solely to an earlier dateconditions set forth in Section 2.1(b);.