Common use of Conditions to Agreement Clause in Contracts

Conditions to Agreement. 28. Except as otherwise provided in Paragraphs 29, 30 and 31 of this Agreement, the obligations of the Parties under this Agreement shall be contingent upon the following: (a) The adoption by Town Meeting of the OSMUD Article and OSMUD Map Amendment in the form recommended for approval by the Planning Board on March 24, 2008, or in a form and condition satisfactory to Developer, and approval of such Article and Amendment by the Attorney General, with all challenge periods having passed, no challenges pending or, if such Article or Amendment is challenged, the same having been finally disposed of favorably to the Article or Amendment not later than one (1) year from the date of adoption by Town Meeting. (b) The issuance, in a form and condition satisfactory to the Developer, of a Master Plan Special Permit for the Project, with all appeal periods having passed, no appeals pending, or if any such Master Plan Special Permit is appealed, the same having been finally disposed of favorably to the Developer not later than one (1) year from the issuance of the Master Plan Special Permit. (c) The issuance, in a form and condition satisfactory to the Developer, of all other state and local approvals applied for and required for the Project, with all appeals periods having passed, no appeals pending, or if any such permit or approval is appealed, the same having been finally disposed of favorably to the Developer not later than one (1) year from the issuance of the permit or approval which is subject of the appeal. (d) The filing by the Developer of the Notice under section 210-172 of the OSMUD Zoning Article. (e) The obligations of the Developer under Paragraph 22 of this Agreement shall be contingent upon the adoption by the Hopkinton School Committee of a resolution in support of the adoption of the OSMUD Article and OSMUD Map Amendment by the Town Meeting. (f) Without limitation of the foregoing, the obligations of the Developer under this Agreement shall be contingent upon the following actions by the Planning Board undertaken in a timely and expeditious manner in a form and condition satisfactory to Developer, subject to the requirements of law: (i) Issuance of a Master Plan Special Permit for the Project and subsequent issuance of Site Plan Approvals for the Development Projects within the OSMUD District; (ii) Confirmation in the Master Plan Special Permit that traffic mitigation measures identified in the Master Plan Special Permit and acceptable to the Developer will be approved by the Planning Board under Site Plan approvals to be issued thereunder for the various Development Project components of the Project as generally sufficient to mitigate the Project’s traffic impact on community roadways and to support the full Intensity of Uses permitted under the OSMUD Article; provided, however, that additional mitigation measures may be required during the Site Plan review process if deemed necessary based on analysis of more detailed information relative to site design and actual use; (iii) Support of the waiver of, or amendment to, the Town’s Subdivision Regulations as may be appropriate to allow definitive subdivision approval or endorsement as so-called “Approval Not Required” lots to be granted consistent with the requirements of the OSMUD Zoning Article and the Master Plan Special Permit including Design Guidelines to be incorporated therein which reflect the width and configuration of roadways appropriate to their setting; (iv) Approval of the acceptance of the Northern and Southern Spine Road Components as public ways after satisfactory completion thereof pursuant to the applicable standards and processes of the Town. (g) Without limitation of the foregoing, the obligations of the Developer under this Agreement shall be contingent upon approval by the Conservation Commission, in a timely and expeditious manner upon application by the Developer, and in a form and condition satisfactory to the Developer, of a so-called “Limited Project” for the Spine Road (as shown on Exhibit A), subject to requirements of applicable law. (h) Without limitation of the foregoing, the obligations of the Developer under this Agreement shall be contingent upon such actions by the Department of Public Works, undertaken in a timely and expeditious manner and in a form and condition reasonably satisfactory to the Developer: (i) such actions as are required under the Alprilla Farms Well Agreement; (ii) the approval of the work as referenced in Section 8 of this Agreement; (iii) the approval of the transportation mitigation in the TIAS as referenced in Paragraph 9 of this Agreement. 29. Notwithstanding the foregoing, it is agreed that the obligations of the Town under Paragraph 26 of this Agreement shall be in effect upon execution of this Agreement. 30. Notwithstanding the foregoing, it is agreed that the obligations of the Developer under Paragraph 8 of this Agreement shall be in effect following the adoption by Town Meeting of the OSMUD Article and OSMUD Map Amendment in the form recommended for adoption by the Planning Board on March 24, 2008, or in a form and condition satisfactory to Developer, and approval of such Article and Amendment by the Attorney General, with all challenge periods having passed, no challenges pending or, if any such zoning amendment is challenged, the same having been finally disposed of favorably to the Article or Amendment not later than one (1) year from the date of adoption by Town Meeting; provided, however, that, the work specified in Paragraph 8 of this Agreement shall be performed forthwith in the event of the filing of a Notice pursuant to the provisions of §210-172 of the OSMUD Article. 31. Notwithstanding the foregoing, it is agreed that all obligations of the Developer under this Agreement shall be in effect upon the filing of a Notice pursuant to the provisions of §210-172 of the OSMUD Article.

Conditions to Agreement. 28. Except The effectiveness of this Agreement is subject to the satisfaction of each of the following conditions precedent: (a) the Administrative Agent (or its counsel) shall have received executed counterparts of this Agreement signed by Holdings, the Borrowers and each other Loan Party as of the date hereof; (b) this Agreement shall have been executed and delivered by the Administrative Agent and each Lender; (c) the Administrative Agent shall have received each of (x) an updated Perfection Certificate dated as of the date of this Agreement (or a certification that the information set forth in the Perfection Certificate most recently delivered under the Existing Credit Agreement is true, complete and correct as of the date of this Agreement) and (y) a completed pro forma Perfection Certificate, with information provided therein giving effect to the Sale and each other transaction contemplated by the PSA, in each case, signed by a Responsible Officer of the Loan Parties, together with all attachments contemplated thereby (the “Pro Forma Perfection Certificate”); (d) the representations and warranties in Section 5 hereof shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects) on and as of such date, provided that to the extent that a representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects) as of such date or period, as the case may be; (e) as of the date hereof, no Default exists and no Event of Default shall have occurred; (f) there shall be no order, injunction or decree of any Governmental Authority restraining or prohibiting this Agreement, the Amendment, the PSA or any of the transactions contemplated hereby or thereby; (g) there shall not exist any material action, suit, investigation, litigation or proceeding pending or overtly threatened in any court or before any arbitrator or Governmental Authority that challenges any of the Loan Documents, including this Agreement and the Amendment, the PSA or any of the transactions contemplated hereby or thereby; (h) the Administrative Agent shall have received (i) a certificate of each of Holdings, the Borrowers and each Loan Guarantor, dated the as of the date of this Agreement and executed by a Secretary, Assistant Secretary or other senior officer, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its board of directors, stockholders, members or other governing body authorizing the execution, delivery and performance of this Agreement and, to the extent it is a party thereto, the PSA, and the consummation of the transactions contemplated hereby and thereby, as applicable, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the officers of such Loan Party authorized to sign this Agreement, and (C) certify that (x) attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum or other equivalent thereof) of each of Holdings, each Borrower and each Loan Guarantor certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws (or articles of association or deed of foundation or other equivalent thereof) or operating, management or partnership agreement and (y) such documents or agreements have not been amended since the date of the last amendment thereto shown on the certificate of good standing referred to below (except as otherwise provided attached to such certificate and certified therein as being the only amendments thereto as of such date) or as shown by the latest shareholders’ resolutions attached thereto amending the same (as the case may be) (or a certification that such documents or agreements referred to in Paragraphs 29the foregoing clauses (x) and (y) have not been amended since the date of the last certification thereof furnished to the Administrative Agent) and (ii) a good standing certificate (or in the case of Hungarian Holdings, 30 a company registry extract), a no-winding-up certificate and/or certificate of tax status (to the extent such concept is known in the relevant jurisdiction) as of a recent date for each of Holdings, each Borrower and 31 each Loan Guarantor from its jurisdiction of organization; (i) the Administrative Agent shall have received a certificate dated the date of this Agreement and signed on behalf of the Borrower Representative by a Responsible Officer, certifying on behalf of the Loan Parties that each condition set forth in clauses (d) through (g) of this Section 3 has been satisfied on such date; (j) as of the date of this Agreement, the obligations Aggregate Revolving Credit Exposure does not exceed $25,000,000; and (k) the Administrative Agent shall have received the reasonable fees, costs and expenses payable to it in accordance with Section 9.03(a) of the Parties under Credit Agreement, including in connection with this Agreement shall be contingent upon (but without regard to the following: (a) The adoption by Town Meeting of the OSMUD Article and OSMUD Map Amendment in the form recommended for approval by the Planning Board on March 24, 2008, or in a form and condition satisfactory to Developer, and approval last sentence of such Article and Amendment by the Attorney GeneralSection), with all challenge periods having passed, no challenges pending or, if such Article or Amendment is challenged, the same having been finally disposed of favorably to the Article or Amendment not later than one extent invoiced at least two (12) year from Business Days prior to the date of adoption by Town Meeting. (b) The issuance, in a form and condition satisfactory to the Developer, of a Master Plan Special Permit for the Project, with all appeal periods having passed, no appeals pending, or if any such Master Plan Special Permit is appealed, the same having been finally disposed of favorably to the Developer not later than one (1) year from the issuance of the Master Plan Special Permit. (c) The issuance, in a form and condition satisfactory to the Developer, of all other state and local approvals applied for and required for the Project, with all appeals periods having passed, no appeals pending, or if any such permit or approval is appealed, the same having been finally disposed of favorably to the Developer not later than one (1) year from the issuance of the permit or approval which is subject of the appeal. (d) The filing by the Developer of the Notice under section 210-172 of the OSMUD Zoning Article. (e) The obligations of the Developer under Paragraph 22 of this Agreement shall be contingent upon the adoption by the Hopkinton School Committee of a resolution in support of the adoption of the OSMUD Article and OSMUD Map Amendment by the Town Meeting. (f) Without limitation of the foregoing, the obligations of the Developer under this Agreement shall be contingent upon the following actions by the Planning Board undertaken in a timely and expeditious manner in a form and condition satisfactory to Developer, subject to the requirements of law: (i) Issuance of a Master Plan Special Permit for the Project and subsequent issuance of Site Plan Approvals for the Development Projects within the OSMUD District; (ii) Confirmation in the Master Plan Special Permit that traffic mitigation measures identified in the Master Plan Special Permit and acceptable to the Developer will be approved by the Planning Board under Site Plan approvals to be issued thereunder for the various Development Project components of the Project as generally sufficient to mitigate the Project’s traffic impact on community roadways and to support the full Intensity of Uses permitted under the OSMUD Article; provided, however, that additional mitigation measures may be required during the Site Plan review process if deemed necessary based on analysis of more detailed information relative to site design and actual use; (iii) Support of the waiver of, or amendment to, the Town’s Subdivision Regulations as may be appropriate to allow definitive subdivision approval or endorsement as so-called “Approval Not Required” lots to be granted consistent with the requirements of the OSMUD Zoning Article and the Master Plan Special Permit including Design Guidelines to be incorporated therein which reflect the width and configuration of roadways appropriate to their setting; (iv) Approval of the acceptance of the Northern and Southern Spine Road Components as public ways after satisfactory completion thereof pursuant to the applicable standards and processes of the Town. (g) Without limitation of the foregoing, the obligations of the Developer under this Agreement shall be contingent upon approval by the Conservation Commission, in a timely and expeditious manner upon application by the Developer, and in a form and condition satisfactory to the Developer, of a so-called “Limited Project” for the Spine Road (as shown on Exhibit A), subject to requirements of applicable law. (h) Without limitation of the foregoing, the obligations of the Developer under this Agreement shall be contingent upon such actions by the Department of Public Works, undertaken in a timely and expeditious manner and in a form and condition reasonably satisfactory to the Developer: (i) such actions as are required under the Alprilla Farms Well Agreement; (ii) the approval of the work as referenced in Section 8 of this Agreement; (iii) the approval of the transportation mitigation in the TIAS as referenced in Paragraph 9 of this Agreement. 29. Notwithstanding the foregoing, it is agreed that the obligations of the Town under Paragraph 26 of this Agreement shall be in effect upon execution of this Agreement. 30. Notwithstanding the foregoing, it is agreed that the obligations of the Developer under Paragraph 8 of this Agreement shall be in effect following the adoption by Town Meeting of the OSMUD Article and OSMUD Map Amendment in the form recommended for adoption by the Planning Board on March 24, 2008, or in a form and condition satisfactory to Developer, and approval of such Article and Amendment by the Attorney General, with all challenge periods having passed, no challenges pending or, if any such zoning amendment is challenged, the same having been finally disposed of favorably to the Article or Amendment not later than one (1) year from the date of adoption by Town Meeting; provided, however, that, the work specified in Paragraph 8 of this Agreement shall be performed forthwith in the event of the filing of a Notice pursuant to the provisions of §210-172 of the OSMUD Article. 31. Notwithstanding the foregoing, it is agreed that all obligations of the Developer under this Agreement shall be in effect upon the filing of a Notice pursuant to the provisions of §210-172 of the OSMUD Article.