Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Date: 5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date); 5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing; 5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004; 5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; 5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto; 5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor; 5.1.7 the Company shall have executed and delivered the Registration Rights Agreement; 5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect; 5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents; 5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and 5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation. 5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing: 5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date); 5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing; 5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation; 5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and 5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Securities Purchase Agreement (Citadel Security Software Inc)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing6.1 The obligation of PDL BioPharma, including without limitation its obligation Inc. to purchase the Preferred Stock and Warrants First Closing Securities at the Closing, are conditioned upon First Closing is subject to the fulfillment to PDL BioPharma, Inc.’s satisfaction, on or waiver by such Investor of each prior to the First Closing Date, of the following events as conditions, any of the Closing Datewhich may be waived by PDL BioPharma, Inc.:
5.1.1 the (a) The representations and warranties of made by the Company set forth in this Agreement and in the other Transaction Documents Section 4 hereof shall be true and correct in all material respects as of such date as if made on such date (the First Closing Date, except that to the extent that any such representation or warranty relates to a particular expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all respects as of that particular such earlier date);
5.1.2 the . The Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement covenants herein and in the any other Transaction Documents that are Document required to be complied with or performed by the Company it on or before prior to the Closing;First Closing Date.
5.1.3 (b) With the Closing Date shall occur on a date that is not later than February 10exception of declarations of effectiveness by the Commission with respect to the registration statements contemplated in the Registration Rights Agreement, 2004;
5.1.4 the Company shall have delivered to such Investor a certificateobtained any and all consents, signed permits, approvals, registrations and waivers necessary for consummation of the purchase and sale of the First Closing Securities and the consummation of the other transactions contemplated by the Chief Executive Officer and Chief Financial Officer Transaction Documents, all of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and which shall be in full force and effect;.
5.1.9 there (c) The Company shall have filed with Nasdaq a Notification Form: Listing of Additional Shares for the listing of the Securities, a copy of which shall have been provided to the Purchasers.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated at the First Closing.
(e) PDL BioPharma, Inc. shall have received a certificate signed by the Chief Executive Officer or the Principal Financial Officer, dated as of the First Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (c), (d), (h), (j) and (k) of this Section 6.1.
(f) PDL BioPharma, Inc. shall have received a certificate signed by the Company’s Secretary, dated as of the First Closing Date, certifying the resolutions adopted by the board of directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, certifying the current versions of the certificate of incorporation and by-laws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(g) PDL BioPharma, Inc.shall have received an opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company, dated as of the First Closing Date, in form and substance reasonably acceptable to the Purchasers and addressing such legal matters as PDL BioPharma, Inc. may reasonably request.1
(h) No stop order or suspension of trading shall have been imposed by the Nasdaq Stock Market, the Commission or any other governmental regulatory body with respect to public trading in the Common Stock.
(i) The Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon the exercise of Common Warrants to be issued at the First Closing.
(j) There shall not have occurred any material adverse change in the Company's ’s consolidated business or financial condition since the date of the Company's ’s most recent unaudited financial recently filed SEC Document.
(k) The Common Stock shall be listed on the Nasdaq Stock Market and the Company shall have filed a supplemental listing application with the Nasdaq Stock Market for the listing of the Common Stock and Common Warrant Shares issuable hereunder and cause such approval shall have been obtained. 1 NTD: Opinion shall include (1) confirmation that stockholder approval is not required for First Closing (issuance of up to 19.99%); (2) confirmation that stockholder vote is not required under DGCL 203
(l) The Company shall have executed and delivered to the Purchasers the Registration Rights Agreement.
(m) PDL BioPharma, Inc. shall have received the Voting and Support Agreements executed by the Company, Invesco and WIM.
(n) The Company shall have complied with all applicable laws and regulations, including (but not limited to) the Financial Conduct Authority’s regulatory rules and regulations on collective investment schemes (COLL Regulations).
6.2 The Second Closing, if any, is subject to the fulfillment to such Purchaser’s satisfaction, on or prior to the Second Closing Date, of the following conditions, any of which may be waived by such Purchaser (as to itself only):
(a) The representations and warranties made by the Company in Section 4 hereof shall be true and correct on the Second Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date. The Company shall have performed in all material respects all obligations and covenants herein and in any other Transaction Document required to be performed by it on or prior to the Second Closing Date.
(b) With the exception of declarations of effectiveness by the Commission with respect to the registration statements contained that cover the Second Closing Securities as contemplated in the Disclosure Registration Rights Agreement, the Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary for consummation of the purchase and sale of the Second Closing Securities and the consummation of the other transactions contemplated by the Transaction Documents;, all of which shall be in full force and effect.
5.1.10 (c) To the extent not previously satisfied by the Company’s filing with Nasdaq pursuant to Section 6.1(c) of this Agreement, the Company shall have filed with Nasdaq an additional Notification Form: Listing of Additional Shares for the listing of the Securities subject to the Second Closing, a copy of which shall have been provided to the Purchasers.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby.
(e) Each Purchaser shall have received a certificate signed by the Chief Executive Officer or the Principal Financial Officer, dated as of the Second Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (c), (d) (h), (j) and (k) of this Section 6.2.
(f) Each Purchaser shall have received a certificate signed by the Secretary, dated as of the First Closing Date, certifying the resolutions adopted by the board of directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, certifying the current versions of the certificate of incorporation and by-laws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(g) The Purchasers shall have received an opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company, dated as of the Second Closing Date, in form and substance reasonably acceptable to the Purchasers and addressing such legal matters as the Purchasers may reasonably request.
(h) No stop order or suspension of trading shall have been imposed by the Nasdaq Stock Market, the Commission or any other governmental regulatory body with respect to public trading in the Common Stock.
(i) The Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Common Warrants to be issued at the Closing Second Closing.
(j) There shall not have occurred any material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recently filed SEC Document.
(k) The Common Stock shall be listed on the Nasdaq Stock Market and the Company shall have filed a supplemental listing application with the Nasdaq Stock Market for the listing of the Common Stock and Common Warrant Shares issuable hereunder and cause such number approval to be determined using the Conversion Price obtained.
(l) Stockholder Approval shall have been obtained and Exercise Price in effect on the Closing Date deemed effective and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as evidence of such dateStockholder Approval in a form reasonably acceptable to the Purchasers shall have been delivered to the Purchasers.
(m) The Company and PDL BioPharma, Inc. shall have prepared and agreed on an operational budget addressing the use of Company resources for the period ending 12 months from June 1, 2019 (the “12-Month Operating Budget”); and
5.1.11 there . Such 12-Month Operating Budget shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver prepared by the Company of each in good faith and include all material expenses reasonably expected to be incurred by the Company through the expiration of the following events period covered by the 12-Month Operating Budget. A copy of such 12-Month Operating Budget shall be provided to the Purchasers.
(n) Each of Invesco and WIM shall have surrendered for cancellation, prior to the Second Closing Date, all existing and outstanding warrants held in the Company by their respective funds as of the date of this Agreement, including: (i) for Invesco: 212,765 warrants to purchase shares of Common Stock with an exercise price per underlying share of $5.20, and (ii) for WIM: 475,000 warrants to purchase shares of Common Stock with an exercise price per underlying share of $8.35 and 975,264 warrants to purchase shares of Common Stock with an exercise price per underlying share of $5.20; it being a condition to each such parties that the other shall also have surrendered all of its warrants (other than those to be acquired at the Second Closing).
6.3 The obligation of the Company to sell and issue First Closing Securities and to deliver First Closing Securities to PDL BioPharma, Inc. at the First Closing is subject to fulfillment to the satisfaction of the Company on or prior to the First Closing Date of the following conditions, any of which may be waived by the Company:
5.2.1 the (a) The representations and warranties of each Investor made by PDL BioPharma, Inc. in Section 5 hereof shall be true and correct in all material respects as of such date as if made on such date (except that the First Closing Date. PDL BioPharma, Inc. shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the extent that First Closing Date.
(b) Each Purchaser shall have executed and delivered to the Company the Registration Rights Agreement.
(c) The Company shall have received payment, by wire transfer of immediately available funds, in the full amount of the purchase price for the number of Securities being purchased by at the First Closing, as determined in accordance with Section 2 hereof.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby.
6.4 The obligation of the Company to sell and issue Second Closing Securities and to deliver Second Closing Securities to any Purchaser at the Second Closing, if any, is subject to fulfillment to the satisfaction of the Company on or prior to the Second Closing Date of the following conditions by such representation or warranty relates to a particular datePurchaser, any of which may be waived by the Company:
(a) The representations and warranties made by such representation or warranty Purchaser in Section 5 hereof shall be true and correct in all material respects as of that particular date);
5.2.2 each Investor on the Second Closing Date. Such Purchaser shall have complied with or performed in all of the agreements, material respects all obligations and conditions set forth in this Agreement that are covenants herein required to be complied with or performed by such Investor it on or before prior to the Second Closing Date.
(b) The Company shall have received payment, by wire transfer of immediately available funds, in the full amount of the purchase price for the number of Securities being purchased by such Purchaser at the Second Closing;, as determined in accordance with Section 2 hereof.
5.2.3 there shall be no (c) No judgment, writ, order, injunction, restraining order award or decree of or by any nature of court, or judge, justice or magistrate, including any bankruptcy court or Government Authority judge, or any order of competent jurisdiction that is in effect that restrains or prohibits by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;.
5.2.4 each Investor (d) The Company shall have executed each of the Transaction Documents to which it is received a party and delivered the same Purchase Notice with respect to the Company; andSecond Closing Securities to be sold in the Second Closing.
5.2.5 each Investor (e) Stockholder Approval shall have delivered to the Company the Purchase Price for Preferred Stock been obtained and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsdeemed effective.
Appears in 1 contract
Samples: Securities Purchase Agreement (Evofem Biosciences, Inc.)
Conditions to Closing. 5.1 Conditions 3.4.1 The Company’s obligation to Investors' Obligations complete the purchase and sale of the Shares and deliver such stock certificate(s) to the Purchaser at the Closing. Each ---------------------------------------------------------- Investor's obligations Closing shall be subject to effect the following conditions, any one or more of which may be waived by the Company: (i) receipt by the Company of same-day funds in the full amount of the purchase price for the Shares being purchased hereunder; (ii) completion of the purchases and sales under the Agreements with all of the Other Purchasers; and (iii) the accuracy of the representations and warranties made by the Purchaser and the fulfillment of those undertakings of the Purchaser to be fulfilled prior to the Closing, including without limitation its ; and (iv) receipt by the Company of a completed version of Exhibit B and Exhibit C-1 or C-2 (as applicable) attached hereto.
3.4.2 The Purchaser’s obligation to purchase accept delivery of such stock certificate(s) and to pay for the Preferred Stock Shares evidenced thereby shall be subject to the following conditions: (i) the accuracy in all material respects of the representations and Warrants at warranties made by the Company herein and the fulfillment in all material respects of those undertakings of the Company to be fulfilled prior to Closing, are conditioned upon (ii) the fulfillment or waiver filing by such Investor the Company of the Certificate of Amendment with the Delaware Secretary of State, (iii) receipt of a certificate signed by the Secretary of the Company to which is attached a true, complete and correct copy of each of the following events as amended and restated certificate of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer incorporation of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation amended and warranty restated bylaws of the Company made herein;
5.1.5 and certain resolutions of the Company shall have delivered to such Investor an opinion Board of counsel for Directors of the Company, dated as to the effect that: (1) except for the filing of such date, the Certificate of Amendment and certificates of designation in substantially connection with the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Company’s Series B1 Convertible Preferred Stock and Series B2 Convertible Preferred Stock, no document with respect to any amendment to the Warrants being purchased by such Investor;
5.1.7 certificate of incorporation of the Company shall have executed has been filed in the office of the Delaware Secretary of State since, and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory no action has been taken or, to the Investors confirming that the Certificate best knowledge of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business , is contemplated by the Board of Directors or financial condition since the date stockholders of the Company's most recent unaudited financial statements contained in , for the Disclosure Documents;
5.1.10 purpose of effecting any such amendment or the dissolution, merger or consolidation of the Company, (2) no proposal for any amendment, repeal or other modification to the amended and restated bylaws of the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) has been taken or is currently pending before the Board of Directors or stockholders of the aggregate number of shares of Common Stock issuable upon conversion of all Company and (3) the resolutions of the Preferred Stock and exercise Board of all Directors of the Warrants to be issued at Company authorizing the Closing (such number to be determined using the Conversion Price execution, delivery and Exercise Price in effect on the Closing Date performance of this Agreement and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated herebyby this Agreement have not been altered, by the other Transaction Documents amended or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to superseded and remain in full force and effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date hereof and the Closing Date, and (iv) Purchasers agreeing under the Agreements to purchase Shares for an aggregate purchase price of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor at least $5,000,000 shall have complied with entered into the Agreements. The Purchaser’s obligations hereunder are expressly not conditioned on the purchase by any or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation Other Purchasers of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall Shares that they have executed each of the Transaction Documents agreed to which it is a party and delivered the same to purchase from the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 7.01 Conditions to Investors' Obligations at GMC's, GMI's and Merger Subsidiary's Obligations. -------------------------------------------------------------- The obligation of GMC, GMI and Merger Subsidiary to consummate the Closing. Each ---------------------------------------------------------- Investor's obligations transactions contemplated by this Agreement is subject to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each satisfaction of the following events as of conditions at or before the Closing DateEffective Time:
5.1.1 the (a) The representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents Article III hereof shall be true and correct in all material respects at and as of the Effective Time as though then made and as though the Effective Time had been substituted for the date of this Agreement throughout such representations and warranties (without taking into account any disclosures by the Company of discoveries, events or occurrences arising on or after the date as if made on such date (hereof), except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects made as of that particular a specified date (other than the date hereof) shall only need to have been true on and as of such date);
5.1.2 the (b) The Company shall have complied with or performed in all material respects all of the agreements, obligations covenants and conditions set forth in this Agreement and in the other Transaction Documents that are agreements required to be complied with or performed by them prior to the Effective Time under this Agreement;
(c) The Company shall have obtained, or caused to be obtained, each consent and approval necessary in order that the transactions contemplated herein not constitute a material breach or violation of, or result in a right of termination or acceleration of, or creation of any encumbrance on any of the Company's assets pursuant to the provisions of, any agreement, arrangement or undertaking of or affecting the Company on or before any license, franchise or permit of or affecting the ClosingCompany;
5.1.3 (d) The Letter Agreement, this Agreement, the Closing Date Certificate of Merger and the Merger shall occur on a date that is not later than February 10have been duly and validly authorized by the board of directors of the Company and this Agreement shall have been duly and validly approved by the stockholders of the Company, 2004;
5.1.4 the Company shall have delivered to GMI evidence, in form satisfactory to GMI's counsel, of such Investor a certificateauthorization and approval, signed and the Certificate of Merger shall have been duly executed by the Chief Executive Officer Company;
(e) All material governmental filings, authorizations and Chief Financial Officer approvals that are required for the consummation of the transactions contemplated by this Agreement or the Certificate of Merger shall have been duly made and obtained;
(f) There shall not be threatened, instituted or pending any action or proceeding, before any court or governmental authority or agency, domestic or foreign,
(i) challenging or seeking to make illegal, or to delay or otherwise directly or indirectly restrain or prohibit, the consummation of the transactions contemplated hereby or seeking to obtain material damages in connection with such transactions, (ii) seeking to prohibit direct or indirect ownership or operation by GMI or Merger Subsidiary of all or a material portion of the business or assets of the Company or to GMI or Merger Subsidiary or any of their subsidiaries or the Company to dispose of or to hold separately all or a material portion of the business or assets of GMI or Merger Subsidiary and their subsidiaries or of the Company, certifying as a result of the transactions contemplated hereby, (iii) seeking to require direct or indirect transfer or sale by GMI or Merger Subsidiary of any of the shares of Company Common Stock, (iv) seeking to invalidate or render unenforceable any material provision of this Agreement, the Certificate of Merger or any of the other agreements attached as exhibits hereto (collectively, the "Related Agreements"), or (v) otherwise relating to and materially adversely affecting the transactions contemplated hereby;
(g) There shall not be any action taken, or any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, issued or deemed applicable to the transactions contemplated hereby by any federal, state or foreign court, government or governmental authority or agency, which would reasonably be expected to result, directly or indirectly, in any of the consequences referred to in Section 7.01(f) hereof;
(h) GMI shall have completed its due diligence investigation of the Company, including the Company's financial statements, tax returns, contracts, employee benefit plans, real property and equipment, and such investigation shall be satisfactory to GMI in its sole discretion, and the officers of the Company shall have made themselves available for additional due diligence as reasonably requested by GMI at any time before the Closing Date; provided, however, that GMI's satisfaction with its due diligence in its sole discretion, as a closing condition, shall terminate at the conditions specified in this paragraph 5.1 have been fulfilled end of the tenth calendar day following the mailing of the Information Statement to be prepared pursuant to Section 5.07 hereof;
(i) The Company's Disclosure Schedules shall not contain or disclose any fact or circumstance existing as of the Closingdate of this Agreement which has not been disclosed to GMI as of the date of this Agreement (with the understanding that write-downs of evaluation units, it being understood that such Investor may rely on such certificate demonstration units, consigned units and parts and other equipment has been disclosed to GMI as though it were a representation and warranty of the date of this Agreement) regarding the business, assets, properties, condition (financial or otherwise) or results of operations of the Company made hereinwhich, individually or in the aggregate with other such facts and circumstances, are reasonably likely to cause the Company or its business to realize a loss, cost, expense or diminution in value, or otherwise result in an adverse effect on the business, assets, properties, condition (financial or otherwise) or results of operations of the Company, taken as a whole, of $250,000 or more (a "Material Adverse Effect");
5.1.5 (j) There shall have been no damage, destruction or loss of or to any property or properties owned or used by the Company, whether or not covered by insurance, which, in the aggregate, has, or would be reasonably likely to have, a Material Adverse Effect on the Company;
(k) No more than 12% of the outstanding shares of Company Common Stock shall be qualified to be Dissenting Shares as of the Effective Time;
(l) GMI shall have received from counsel for the Company a written opinion, dated the date of the Effective Time, addressed to GMC, GMI and Merger Subsidiary and reasonably satisfactory to counsel for GMI;
(m) Prior to the Effective Time, the Company shall have delivered to such Investor an opinion GMI all of counsel for the following:
(i) a certificate of the Secretary of the Company, dated as of such datethe date of the Effective Time, in substantially stating that the form conditions precedent set forth on Exhibit 5.1.5 heretoin subsections (a) and (b) above have been satisfied;
5.1.6 (ii) a copy of each of (X) the text of the resolutions adopted by the board of directors of the Company shall have delivered duly executed certificates representing authorizing the Preferred Stock execution, delivery and performance of the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed Letter Agreement, this Agreement and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall Merger and the consummation of all of the transactions contemplated by this Agreement and the Certificate of Merger and (Y) the Bylaws of the Company, along with a certificate executed on behalf of the Company by its corporate secretary certifying to GMI that such copies are true and correct copies of such resolutions and Bylaws, respectively, and that such resolutions and bylaws were duly adopted and have not been duly authorized amended or rescinded;
(iii) the Company's minute books, stock transfer records, corporate seal and adopted other materials related to the Company's corporate administration;
(iv) a copy of the Certificate of Incorporation of the Company, certified by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be Certificates of Good Standing from the Secretary of State of the State of Delaware evidencing the good standing of the Company in full force and effectsuch jurisdiction;
5.1.9 there (v) copies of the third party and governmental consents and approvals and of the authorizations referred to in subsections (c), (d) and (e) above;
(vi) incumbency certificates executed on behalf of the Company by its corporate secretary certifying the signature and office of each officer executing this Agreement and the Certificate of Merger and the Related Agreements executed by the Company;
(vii) an executed copy of each of the Related Agreements;
(viii) such other certificates, documents and instruments as GMI reasonably requests related to the transactions contemplated hereby;
(n) Xxxxxx Xxxxxx Xx., Xxxxxx Xxxxxx III and the Xxxx and Xxxxxx Xxxxxx Foundation (the "Stockholder Lenders") shall have been no material adverse change canceled $280,000 of short-term Company debt, plus accrued but unpaid interest, in exchange for the Company's consolidated business or financial condition since issuance by the date Company to the Stockholder Lenders of a number of shares of the Company's most recent unaudited financial statements contained in Common Stock equal to the Disclosure Documentsamount of such debt and accrued but unpaid interest divided by $1.00;
5.1.10 (o) No more than 35 of the stockholders of the Company shall not be "accredited investors" within the meaning of Rule 501 under the 1933 Act, and the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) delivered to GMI evidence, in form satisfactory to GMI's counsel, of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)compliance with this condition; and
5.1.11 there (p) H&QGF, GMC and GMI shall have negotiated and executed loan agreements providing for one or more loans in the aggregate amount of up to $3,000,000 to be no injunctionmade by H&QGF to GMC, restraining order GMI or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationSurviving Corporation.
5.2 Conditions to Company's Obligations at the Closing. (q) The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsCollateral Agreement.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions On or prior to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations date of the --------------------- execution of this Agreement, the Seller shall deliver to effect the ClosingAdministrative Agent the following documents and instruments, including without limitation its obligation all of which shall be in a form and substance acceptable to purchase the Preferred Stock and Warrants at Administrative Agent (with such additional copies thereof as the Closing, are conditioned upon Administrative Agent may request):
(a) A copy of the fulfillment or waiver by such Investor resolutions of the Board of Directors of each of the following events Seller, the Servicer and the Guarantor certified as of the Closing Date:
5.1.1 date hereof by such Person's secretary or assistant secretary authorizing the representations execution, delivery and warranties performance of the Company set forth in this Agreement and the other documents to be delivered by such Person hereunder and approving the transactions contemplated hereby and thereby;
(b) The Certificate of Incorporation or organizational documents of each of the Seller, the Servicer and the Guarantor certified as of a date reasonably near the date hereof by the Secretary of State or other similar official of such Person's jurisdiction of incorporation;
(c) A good standing certificate for each of the Seller, the Servicer and the Guarantor issued by the Secretary of State or other similar official of such Person's jurisdiction of incorporation, and certificates of the appropriate state official in each jurisdiction specified by the Administrative Agent as to the absence of any tax Liens against such Person under the Laws of such jurisdiction, each such certificate to be dated a date reasonably near the date hereof;
(d) A certificate of the secretary or assistant secretary of each of the Seller, the Servicer and the Guarantor dated the date hereof and certifying (i) the names and signatures of the officers authorized on such Person's behalf to execute, and the officers and other employees authorized to perform, this Agreement and any other documents to be delivered by such Person hereunder (on which certificate the Administrative Agent and each Owner may conclusively rely until such time as the Administrative Agent shall receive from such Person a revised certificate meeting the requirements of this clause (d)(i)) and (ii) a copy of such Person's By-laws;
(e) Acknowledgment copies of proper financing statements (Form UCC-l) dated a date reasonably near the date hereof (i) naming the Seller as the transferor (debtor) of the Receivables and Xxxxxx Guaranty Trust Company of New York, as Administrative Agent (for the benefit of the Owners), as the transferee (secured party) or other similar instruments or documents as may be necessary or, in the other Transaction Documents shall be true and correct opinion of the Administrative Agent, desirable under the UCC of all appropriate jurisdictions to evidence or perfect the Owners' ownership interests in all material respects Receivables and (ii) naming AmeriSource as the transferor (debtor) of the applicable Receivables and the Seller as the transferee (secured party), or other similar instruments or documents as may be necessary or, in the opinion of the Administrative Agent, desirable under the UCC of all appropriate jurisdictions to evidence or perfect the Seller's ownership interest in all Receivables;
(f) Certified copies of requests for information or copies (Form UCC-11) (or a similar search report certified by parties acceptable to the Administrative Agent) dated a date reasonably near the date hereof listing all effective financing statements which name the Seller or AmeriSource (under their respective present names and any previous names) as debtor and which are filed in jurisdictions in which the filings were made pursuant to item (e) above, together with copies of such date as if made on such date financing statements (except that to none of which shall cover any Receivables or Contracts or inventory or goods the extent that any such representation or warranty relates sale of which may give rise to a particular date, such representation or warranty shall be true and correct in all respects as of that particular dateReceivable);
5.1.2 the Company shall have complied with (g) A favorable opinion or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion opinions of counsel for the CompanySeller, dated the date hereof relating to corporate matters, legality, validity and enforceability of the Purchase Documents, true sale and non-consolidation and such other matters as of such date, in substantially the form set forth on Exhibit 5.1.5 heretoAdministrative Agent may reasonably request;
5.1.6 (h) A favorable opinion or opinions of counsel for the Company shall have delivered duly executed certificates representing Servicer, dated the Preferred Stock date hereof, relating to corporate matters, legality, validity and enforceability of the Warrants being purchased by Purchase Documents, and such Investorother matters as Administrative Agent may reasonably request;
5.1.7 (i) A favorable opinion or opinions of counsel for AmeriSource, dated the Company shall have executed date hereof, relating to corporate matters, legality, validity and delivered enforceability of the Registration Rights Purchase Agreement, and such other matters as the Administrative Agent may reasonably request;
5.1.8 (j) A favorable opinion or opinions of counsel for the Company shall have delivered evidence reasonably satisfactory Guarantor, dated the date hereof, relating to the Investors confirming that the Certificate of Designation shall have been duly authorized corporate matters, legality, validity and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State enforceability of the State of DelawarePurchase Documents, and shall be in full force and effectsuch other matters as Administrative Agent may reasonably request;
5.1.9 there shall have been no material adverse change in the Company(k) An officer's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company certificate of each of the following events as Seller, the Servicer and the Guarantor dated the date hereof, executed by a Responsible Officer of each such Person, in form and substance acceptable to the Administrative Agent;
(l) The Arrangement Fee and Conduit Fee shall have been paid;
(m) An executed copy of the date Purchase Agreement and each document or certificate delivered in connection therewith;
(n) An officer's certificate of the Closing:
5.2.1 Seller dated the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to hereof, executed by a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all Responsible Officer of the agreementsSeller, obligations and conditions set setting forth each jurisdiction in this Agreement that are required to be complied with or performed by such Investor on or before which the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that Seller is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is qualified as a party and delivered the same to the Companyforeign corporation; and
5.2.5 each Investor (o) Such other documents as the Buyer shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsreasonably request.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Amerisource Distribution Corp)
Conditions to Closing. 5.1 Conditions The obligations of the Purchaser and OTI and the obligations of the Sellers to Investors' Obligations consummate the transactions set forth herein is subject to the fulfillment, at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants latest at the ClosingClosing Date, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as conditions (any or all of which may be waived by the Closing Date:Purchaser, OTI or the Sellers if provided for his benefit):
5.1.1 (a) the Company and DXP have entered into an agreement under which the Business was transferred to the Company which has been duly authorised and executed by the Company and DXP. DXP and the Company have performed and complied with all obligations and covenants required pursuant to the said agreement to be performed or complied with by them and all the assets related to the Business have been effectively transferred to the Company;
(b) the representations and warranties of the Company set forth in this Agreement and DXP as provided for in the other Transaction Documents transfer of business agreement were true and correct when made and shall be true and correct in all material respects at the Closing as of such date as if though made on such date (except that to again at the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)Closing Date;
5.1.2 (c) the Company and the Sellers shall have performed and complied with or performed in all material respects all of the agreements, obligations and conditions set forth in covenants required by this Agreement and in the other Transaction Documents that are required to be performed or complied with or performed by them at the Company on or before latest at the Closing;
5.1.3 (d) the Purchaser and OTI shall have performed and complied with all obligations and covenants required by this Agreement to be performed or complied with by them at the latest at the Closing;
(e) between the date of this Agreement and the Closing Date shall occur on a date that is not later than February 10Date, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date conditions of the Company's most recent unaudited financial statements contained in Business or clients and prospects of the Disclosure DocumentsBusiness; and any event or material change has been notified to the Purchaser or OTI and any decision which may affect the Business has been taken with the prior approval of the Purchaser or OTI;
5.1.10 (f) all corporate authorisations on the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) part of the aggregate number Purchaser or OTI necessary for the execution of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)this Agreement have been granted;
5.2.2 each Investor (g) DXP shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered deliver to the Company a certificate under which DXP shall certify the Purchase Price for Preferred Stock absence of claims from auditors within the legal time period of Article L.141-14 and seq. of the Warrants being purchases by it at Commercial Code and in case of claims, shall justify the Closing by wire transfer payment of immediately available fundsthe corresponding claim whatever its amount is, in order that the Company may not be troubled.
Appears in 1 contract
Samples: Share Transfer Agreement (On Track Innovations LTD)
Conditions to Closing. 5.1 Conditions to Investors' ’ Obligations at the Closing. Each ---------------------------------------------------------- Investor's ’s obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants Purchased Securities at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Company shall have filed the Certificate of Designation with the Secretary of State of the State of Missouri and delivered to such Investor written evidence of the acceptance of such filing;
5.1.4 the Closing Date shall occur on a date that is not later than February June 10, 20042005;
5.1.4 5.1.5 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 5.1.6 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an opinion Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.7 the Company shall have delivered to such Investor one or more opinions of counsel for the Company, dated as of such datethe Closing Date, in substantially the form set forth on Exhibit 5.1.5 5.1.7 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to such Investor the Investors confirming that duly executed Note and duly executed certificates representing the Certificate of Designation shall have been duly authorized Preferred Shares Warrant and adopted VeriChip Warrant being purchased by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effectsuch Investor;
5.1.9 the Company shall have executed and delivered to such Investor the Registration Rights Agreement;
5.1.10 the Company shall have obtained the written agreement of each Key Employee to refrain from selling shares of Common Stock during any Restricted Period, except for sales made pursuant to a 10b-5(1) plan described in Section 4.2(h);
5.1.11 there shall have been occurred no material adverse change in the Company's ’s consolidated business or financial condition since the date of the Company's ’s most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 5.1.12 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock shall be quoted and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect actively traded on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Nasdaq Stock or exercise the Warrants as of such date)Market; and
5.1.11 5.1.13 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby or by the other Transaction Documents or by the Certificate of DesignationDocuments.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Securities Purchase Agreement (Applied Digital Solutions Inc)
Conditions to Closing. 5.1 Conditions The obligation of the Purchaser to Investors' Obligations at --------------------- pay for the Closing. Each ---------------------------------------------------------- Investor's obligations Note upon initial issuance is subject to effect (i) satisfaction of the Closing, including without limitation its obligation to purchase conditions precedent set forth in Section 4.01 of the Preferred Stock Note Purchase Agreement and Warrants at (ii) receipt by the Closing, are conditioned upon the fulfillment or waiver by such Investor of each Note Insurer of the following events as documents, instruments and fees, all of which shall be in a form and substance acceptable to the Closing DateNote Insurer:
5.1.1 (a) An executed copy of this Agreement, the representations Master Receivables Purchase Agreement, the Premium Side Letter and warranties each of the Company set forth in this Agreement and in the other Transaction Documents (other than Hedging Arrangements not then executed, which shall be true and correct in all material respects as of such date as if made on such date (except that subject to the extent that any such representation review and approval procedures of Section 5.3 hereof).
(b) Any other fees or warranty relates to a particular date, such representation or warranty shall be true amounts due and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company payable on or before the Closing;
5.1.3 the Closing Date in accordance with the Premium Side Letter.
(c) Such other documents, approvals, consents, instruments, certificates or opinions as the Collateral Agent or the Secured Parties shall occur on a date that is not later than February 10, 2004;reasonably request.
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer (d) A copy of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as resolutions of the ClosingBoard of Directors of AmeriCredit, certified by its Secretary approving the execution, delivery and performance by it being understood that such Investor may rely on such certificate as though (and the Debtor) of this Agreement, the Master Receivables Purchase Agreement, the Trust Agreement and the other Transactions Documents to be delivered by it were a representation (and warranty the Debtor) hereunder or thereunder and all other documents evidencing necessary corporate action (including shareholders consents) and government approvals, if any.
(e) A copy of the Company made herein;
5.1.5 resolutions of the Company shall have delivered to such Investor an opinion Board of counsel for Directors of AMTN, certified by its Secretary approving the Companyexecution, dated as delivery and performance by it of such datethis Agreement, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 Master Receivables Purchase Agreement, the Company shall have delivered duly executed certificates representing the Preferred Stock Trust Agreement and the Warrants being purchased other Transactions Documents to be delivered by such Investor;it hereunder or thereunder and all other documents evidencing necessary corporate action (including shareholders consents, if any) and government approvals, if any.
5.1.7 (f) The certificate of trust of the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted Debtor certified by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;Delaware dated a date reasonably prior to the Closing Date.
5.1.9 there shall have been no material adverse change in (g) The certificate of incorporation of AmeriCredit certified by the Company's consolidated business or financial condition since the date Secretary of State of the Company's most recent unaudited financial statements contained in State of Delaware dated a date reasonably prior to the Disclosure Documents;Closing Date.
5.1.10 (h) The certificate of incorporation of AMTN certified by the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) Secretary of State of the aggregate number State of shares Delaware dated a date reasonably prior to the Closing Date.
(i) (i) The articles of Common Stock issuable upon conversion of all incorporation of the Preferred Stock and exercise of all Trustee certified by an officer of the Warrants Trustee dated a date reasonably prior to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability (ii) a power of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, attorney granted by the other Transaction Documents or by the Certificate Trust in favor of DesignationBankers Trust (Delaware).
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at 1. The obligation of the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation Investor to purchase and pay for the Preferred Stock and Warrants Shares being purchased by it on the Closing Date is, at its option, subject to the Closingsatisfaction, are conditioned upon the fulfillment on or waiver by before such Investor of each date, of the following events as of the Closing Dateconditions:
5.1.1 the (a) The representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents Section B hereof shall be true and correct in all material respects on and as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date as if made on date, and the Company shall have certified to such date (except that effect to the extent that Investor;
(b) The Investor shall have received from Shearman & Sterling, counsel for the Company, and Xxxxxxx Xxxxxxxxxxx, Manager, Legal Affairs of the Company, legal opinions dated the Closing Date in substantially the form of Exhibit C-1 and C-2 hereto, respectively;
(c) The Company shall have performed and complied with all agreements and conditions contained herein required to be performed or complied with by it prior to or at the Closing Date, and the Company shall have certified to such effect to the Investor;
(d) Certified copies of (A) the resolutions of the Board of Directors of the Company approving this Agreement and the Registration Rights Agreement and the transactions contemplated hereby and thereby, (B) all documents evidencing other necessary corporate action and government approvals, if any with respect to this Agreement, (C) the certificate of incorporation and by-laws of the Company, and (D) a good standing certificate with respect to the Company from the Secretary of State (or similar official) of the State of Washington;
(e) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of its officers authorized to sign this Agreement and the Registration Rights Agreement and the other documents to be delivered by it hereunder; and
(f) On the Closing Date, the Company, the Investor and the holders of at least a majority in interest of the "Registrable Securities" (as such representation term is defined in the Registration Rights Agreement) shall have entered into Amendment No. 1 to the Registration Rights Agreement substantially in the form annexed hereto as Exhibit A-2.
2. The obligation of the Company to issue and sell the Shares being issued and sold by it on the Closing Date is, at its option, subject to the satisfaction, on or warranty relates to a particular before such date, such representation or warranty of the following conditions:
(a) The representations and warranties of the Investor contained in Section C hereof shall be true and correct in all respects on and as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 with the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate same effect as though it were a representation such representations and warranty of the Company warranties had been made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated on and as of such date; and
(b) On the Closing Date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 Company, the Company shall have delivered duly executed certificates representing the Preferred Stock Investor and the Warrants being purchased by holders of at least a majority in interest of the "Registrable Securities" (as such Investor;
5.1.7 the Company shall have executed and delivered term is defined in the Registration Rights Agreement;
5.1.8 the Company ) shall have delivered evidence reasonably satisfactory entered into Amendment No. 1 to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change Registration Rights Agreement substantially in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants form annexed hereto as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationExhibit A-2.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at The obligation of the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation Investor to purchase the Preferred Stock and Warrants Securities at the Closing, are conditioned upon applicable Closing is subject to the fulfillment or waiver by such Investor satisfaction of each of the following events as of the conditions, at or before each applicable Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date Date (except that to the extent that any such representation or warranty relates the condition is expressly limited under the applicable subparagraph of this Section 7(a) to a particular dateClosing or a particular Closing Date), such representation or warranty shall be true it being agreed and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed understood by the Company on or before and the Closing;
5.1.3 Investor that each of these conditions is material, is beyond the Closing Date Investor’s reasonable control, is for the Investor’s sole benefit and shall occur on a date that is not later than February 10only be deemed to have been waived by the Investor if Investor, 2004;
5.1.4 acting in its sole discretion, provides the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer with prior written notice of the Company, certifying that waiver thereof:
(i) Solely with respect to the conditions specified in this paragraph 5.1 have been fulfilled as of the Initial Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Investor, except that the Second Closing Warrant shall be executed and delivered by the Company at the Second Closing and, if applicable, the Final Closing Warrant shall be executed and delivered by the Company at the Final Closing.
(ii) The Investor shall have received the opinion of Xxxx Xxxxxx Xxxxxxxx, the Company; and’s Washington counsel, dated as of the applicable Closing Date, in the form previously provided to the Company.
5.2.5 each Investor (iii) Solely with respect to the Initial Closing and simultaneously therewith, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to the Investor, which instructions shall have been delivered to and acknowledged in writing by the Transfer Agent.
(iv) Except with respect to the Initial Closing, the Company shall have delivered to the Purchase Price Investor (A) a certificate evidencing the valid existence of the Company in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the applicable Closing Date, and (B) a certified copy of its Amended and Restated Articles of Incorporation, as amended to date, as certified by the Washington Secretary of State within ten (10) days of the applicable Closing Date.
(v) The Company shall have delivered to the Investor a certificate, in the form reasonably acceptable to the Investor, executed by the Secretary of the Company and dated as of the applicable Closing Date, as to (i) the resolutions consistent with Section 3(c) as adopted by the Company’s Board of Directors in a form reasonably acceptable to the Investor, (ii) the Articles of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the applicable Closing.
(vi) The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Closing Date, in the form reasonably acceptable to the Investor, certifying that the representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the applicable Closing Date as though originally made at that time (except for representations and warranties that speak only as of a specific date, which shall be true and correct as of such date); provided, however, that, in respect of any representation and warranty that is required to be so true and correct as of the applicable Closing Date, any information disclosed by the Company in a filing with the SEC after the Effective Date but prior to the applicable Closing Date shall be deemed to update the representations and warranties automatically and without any further action on the part of the Company, and the Company shall have performed, satisfied and complied with in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the applicable Closing Date.
(vii) Except with respect to the Initial Closing, the Company shall have delivered to the Investor a letter from the Company’s transfer agent indicating the number of shares of Common Stock outstanding on the applicable Closing Date immediately prior to the applicable Closing.
(viii) The Common Stock (I) shall be designated for quotation or listed on the Trading Markets and (II) shall not have been suspended, as of the applicable Closing Date, by the SEC or the Trading Markets from trading on the Trading Markets nor shall suspension by the SEC or the Trading Markets have been threatened, as of the applicable Closing Date, in writing by the SEC or the Trading Markets (other than with respect to the minimum bid price per share requirements).
(ix) The Company is in compliance with all requirements (other than minimum bid price per share requirements) in order to maintain listing or quotation on the Trading Markets (including reporting requirements under the 1934 Act).
(x) The Company shall have obtained all governmental, regulatory or third party consents and approvals and shall have made all required filings, in each case, if any, necessary for the sale of the Securities at such Closing, including without limitation, those required by the Trading Markets.
(xi) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents, and no actions, suits or proceedings shall be in progress or pending by any Person that seeks to enjoin, prohibit or otherwise adversely affect any of the transactions contemplated by the Transaction Documents.
(xii) Since the Effective Date, no event or series of events shall have occurred that have had, or reasonably would have, or result in, a Material Adverse Effect, it being understood and agreed that no information filed with the Commission after the Effective Date shall in any way limit or qualify the occurrence of a Material Adverse Effect or Investor’s ability to rely on this condition.
(xiii) All shares of Common Stock, if any, required to be issued on or prior to the Closing Date pursuant to the terms of the Warrants, including pursuant to any exercise or exchange thereof, shall have been timely delivered to the Investor pursuant to the terms thereof, in each case, prior to the applicable Closing Date.
(xiv) The Company has a current, valid and effective Registration Statement and the Prospectus shall be properly available for use to permit the lawful sale or resale of the Securities to be issued at such Closing in connection herewith, and has filed with the SEC and delivered to the Investor a Prospectus Supplement in the form acceptable to the Investor with respect to the applicable Closing and shall have included therein such information and matters relating to the offering, the Securities, the plan of distribution, the sale of the shares of Preferred Shares in connection herewith, and otherwise with respect to matters related to the Registration Statement and the transactions contemplated hereby as required and also as the Investor may request, all so that such information is immediately prior to such Closing part of the current Prospectus forming part of the Registration Statement in accordance with applicable securities laws and the rules and regulations thereunder.
(xv) The Company has a sufficient number of duly authorized shares of Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents.
(xvi) The aggregate number of Common Shares issuable to the Investor upon conversion of the Preferred Shares or exercise or exchange of the Warrant Shares to be issued at such Closing would not cause the Investor to exceed the Investor Ownership Limit (excluding all other shares of Common Stock and other voting securities then owned or deemed beneficially owned by the Investor and its Affiliates (as defined in Rule 144) or the Company to exceed the Company Issuance Limit.
(xvii) If any of the shares of Common Stock issuable upon conversion of the Preferred Shares or issuable upon exercise or exchange of the Warrants being purchases by it at cease to be a “covered security” pursuant to Section 18 of the Act, the Investor shall have received appropriate and customary assurances from the Company’s independent legal counsel with respect to compliance with applicable state securities and “blue sky” laws in connection with the issuance of such Securities in connection with the applicable Closing.
(xviii) The Company is not, and will not be as a result of the applicable Closing, in default of this Agreement, any other agreement between the Company and the Investor, or any other material agreement listed, or required to be listed under Item 601 of Regulation S-K under the 1934 Act, on any of Company’s reports filed or required to be filed with the SEC, including without limitation Forms 10-K, 10-Q or 8-K (each, a “Material Agreement”), following notice and the opportunity to cure to the extent expressly applicable, other than any default that has not had, and would not reasonably be expected to have, a Material Adverse Effect.
(xix) In connection with the Initial Closing only, the Company shall have paid the applicable fees and expenses of counsel for Investor, SNR Xxxxxx US LLP, in accordance with the provisions of Section 4(g), by wire transfer of immediately available fundsfunds to an account designated by such counsel.
(xx) The Company shall have paid the Placement Agent Fee payable in connection with such Closing to the Placement Agent in accordance with the terms hereof.
(xxi) All previously-issued Common Shares including Conversion Shares and Warrant Shares are DWAC Shares in electronic form and are then freely tradable by the Investor and without restrictive legend. For purposes hereof, “DWAC Shares” means all Common Shares or other shares of Common Stock issued or issuable to the Investor or any Affiliate, successor, designee or assign of the Investor pursuant to any of the Transaction Documents, all of which shall be (a) issued in electronic form, (b) freely tradable by the Investor or its designee and legend free and without restriction on resale, and (c) timely credited by Company to the specified Deposit/Withdrawal at Custodian account with DTC under its Fast Automated Securities Transfer Program or any similar program hereafter adopted by DTC performing substantially the same function, in accordance with the Irrevocable Transfer Agent Instructions.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cell Therapeutics Inc)
Conditions to Closing. 5.1 Conditions to Investors' Purchaser's Obligations at the Closing. Each ---------------------------------------------------------- InvestorPurchaser's obligations to effect at the Closing, including without limitation its obligation to purchase the Preferred Stock Shares and Warrants at the ClosingWarrant being purchased by such Purchaser, are conditioned upon the fulfillment satisfaction by the Company (or waiver by such Investor Purchaser) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur occur, and all closing conditions set forth in this paragraph 5.1 shall have been satisfied or waived, on a date that is not later than February 101, 20042000;
5.1.4 the Company shall have delivered to such Investor Purchaser a certificate, signed by the Chief Executive Officer and Chief Financial Officer an officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor Purchaser may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor Purchaser an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto, and covering such additional matters as may reasonably be requested by such Purchaser;
5.1.6 the Company shall have delivered to such Purchaser duly executed certificates representing the Preferred Stock Shares and the Warrants Warrant being purchased by such InvestorPurchaser;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company Common Stock shall be listed for trading on the Nasdaq SmallCap Market and no suspension of trading in the Common Stock on such market shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized occurred and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State be continuing as of the State of Delaware, and shall be in full force and effectClosing Date;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion required to be reserved under paragraph 4.5 hereof, and shall have provided such Purchaser with reasonable evidence thereof;
5.1.10 each other Purchaser shall have tendered payment of the Purchase Price for the number of Preferred Shares set forth on such other Purchaser's signature page hereto so that the aggregate amount tendered by all of the Preferred Stock Purchasers hereunder is no less than ten million dollars ($10,000,000);
5.1.11 the registration statement referred to in the Registration Rights Agreement, dated August 25, 1999, between the Company and exercise of all of the Warrants Initial Purchaser named therein shall have been declared effective by the Commission and no stop order relating to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)registration statement shall have been issued; and
5.1.11 5.1.12 since the date of this Agreement, there shall be no injunctionnot have occurred, restraining order in the reasonable judgment of such Purchaser, a material adverse change in the business, operations, financial condition, properties, prospects or decree results of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation operation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationCompany.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect at the Closing are conditioned upon the fulfillment satisfaction (or waiver by the Company Company) of each of the following events as of the date of the ClosingClosing Date:
5.2.1 the representations and warranties of each Investor Purchaser shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);; and
5.2.2 each Investor Purchaser shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor Purchaser on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Securities Purchase Agreement (Webb Interactive Services Inc)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its Your obligation to purchase and pay for the Preferred Stock and Warrants Series [ ] Notes to be sold to you at the Closing is subject to the fulfillment to your satisfaction, prior to or at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Dateconditions:
5.1.1 the representations (a) The Company shall have executed and warranties delivered a counterpart of the Company this Supplement signed on behalf of such party.
(b) All conditions precedent set forth in this Section 4 of the Note Agreement and shall have been satisfied with respect to the Series [ ] Notes (with the “Series [ ]” Notes being deemed substituted for “Series A” Notes in such Sections of the Note Agreement; the “Closing (as defined in the other Transaction Documents Supplement)” being deemed substituted for the “Restatement” or the “Restatement Closing Date,” as applicable; any references to the amendment and restatement of the Existing Notes as Series A Notes shall be true and correct in all material respects as of such date as if made on such date (except that deemed to be reference to the extent that “issue and sale of the Series [ ] Notes;” and all references to any “Schedule” in such representation or warranty relates to a particular date, such representation or warranty Sections of the Note Agreement shall be true and correct in all respects as of that particular datedeemed a reference to the corresponding Schedule attached to this Supplement);.
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the (c) The Company shall have delivered to such Investor you a certificateSecretary’s Certificate certifying as to the resolutions attached thereto and other proceedings relating to the authorization, signed by the Chief Executive Officer execution and Chief Financial Officer delivery of the CompanySeries [ ] Notes and this Supplement.
(d) The Company shall execute and deliver to each Additional Purchaser an Officer’s Certificate dated the date of issue of the Series [ ] Notes, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as Sections 4.3 and 4.15 of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty Note Agreement has been fulfilled.
(e) A duly authorized Senior Financial Officer of each of the Company made herein;shall execute and deliver to each Additional Purchaser an Officer’s Certificate dated the date of issue of the Series [ ] Notes, substantially in the form of Exhibit 2 to the Note Agreement and with appropriate attachments, in each case demonstrating that, after giving effect to consummation of the transactions contemplated by the Note Agreement (including this Supplement thereto), Company will be Solvent, after giving effect to the issuance of the Series [ ] Notes.
5.1.5 (f) A duly authorized Senior Financial Officer of the Company shall execute and deliver to each Additional Purchaser a Compliance Certificate dated the date of issue of the Series [ ] Notes, substantially in the form of Exhibit 3 to the Note Agreement (except that the reference therein to the “Series A Notes” shall be changed to reference the “Series [ ] Notes”), stating that such officer has reviewed the provisions of the Note Agreement (including this Supplement thereto) and setting forth the information and computations (in sufficient detail) required in order to establish whether the Company is in compliance with the requirements of Sections 10.5, 10.7, 10.9, 10.15, 10.16, 10.17 and 10.18 of the Note Agreement on such date, after giving pro forma effect to the issuance of the Series [ ] Notes.
(g) You shall have delivered received opinions in form and substance satisfactory to such Investor an opinion you, dated the date of the Closing from , counsel for the Company, dated as of covering such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory matters incident to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents hereby as you or by the Certificate of Designationyour counsel may reasonably request (and Company hereby instructs its counsel to deliver such opinion to you).
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned The Underwriters have entered into this Certificate Purchase Agreement in reliance upon the fulfillment or waiver by such Investor of each representations and agreements of the following events Corporation and the School Board herein and the performance by the Corporation and the School Board of their obligations hereunder, both as of the Closing Date:
5.1.1 the representations date hereof and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing. The Underwriters’ obligations under this Certificate Purchase Agreement are and will be subject to the following further conditions:
5.2.1 (a) at the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all time of the agreementsClosing (i) each of the Corporation Documents and the School Board Documents will be in full force and effect and will not have been amended, obligations modified or supplemented except as may have been agreed to in writing by the Manager,
(ii) the proceeds of the sale of the Series 2012A Certificates will be applied as described in the Offering Statement, and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before (iii) the Closing;
5.2.3 School Board and the Corporation will have duly adopted and there shall be no injunctionin full force and effect such resolutions as, restraining order in the opinion of Xxxxxxxxx Xxxxxxx, P.A. and KnoxSeaton (collectively, “Co-Special Tax Counsel”), shall be necessary to effectuate the transactions contemplated hereby and by the Offering Statement;
(b) the Underwriters shall have the right to cancel their obligations to purchase the Series 2012A Certificates, by notice from the Manager to the Corporation and School Board of its election to do so, if between the date hereof and the Closing:
(i) legislation shall have been enacted by the Congress of the United States or decree adopted by either House thereof or favorably reported for passage to either House of the Congress by any committee of such House to which such legislation shall have been referred for consideration, or enacted by the Florida Legislature or adopted by either House thereof or favorably reported for passage to either House of the Florida Legislature by any committee of such House to which such legislation shall have been referred for consideration, or a decision shall have been rendered by a court of the United States or of the State of Florida or by the Tax Court of the United States, or any stop order, release, regulation or no-action letter by or on behalf of the Securities and Exchange Commission or any other governmental agency having jurisdiction, shall occur or be introduced, enacted or adopted, or a ruling or an official statement shall have been made or a regulation shall have been proposed or made by or on behalf of the Treasury Department of the United States or the Internal Revenue Service or other federal or Florida authority, with respect to federal or Florida taxation upon revenues or other income of the general character to be derived by the Corporation or by any similar body, or upon interest on obligations of the general character of the Ground Leases or the Leases, or the tax treatment thereof for federal income tax purposes, or (in the case of Florida authorities only) with respect to Florida taxation on such Leases or on the Series 2012A Certificates as intangible personal property, or other action or events shall have transpired that, in the reasonable judgment of the Underwriters, would have the purpose or effect, directly or indirectly, of changing the federal income tax consequences or Florida tax consequences of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated herebyin connection herewith, and that, in the reasonable judgment of the Underwriters, affects materially and adversely the market price or the marketability of the Series 2012A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2012A Certificates; or
(ii) any event shall have occurred, or any condition shall exist that, in the reasonable judgement of the Underwriters, either (A) makes untrue or incorrect in any material respect any statement or information contained in the Offering Statement or (B) is not reflected in the Offering Statement but should be reflected therein in order to make the statements and the information contained therein, in light of the circumstances under which they were made, not misleading in any material respect; or
(iii) there shall have occurred any outbreak or escalation of hostilities, or declaration of war by the United States, or other Transaction Documents local, national or international emergency, calamity or crisis, including financial crisis, the effect of which on the financial markets of the United States, in the sole judgement of the Underwriters, is such as to make the offering or delivery of the Series 2012A Certificates, as contemplated by the Offering Statement, impractical or inadvisable; or
(iv) there shall be in force a general suspension of trading on the New York Stock Exchange or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices of securities shall have been required and be in force on the New York Stock Exchange, or by order of the Certificate Securities and Exchange Commission or any other governmental authority having jurisdiction, or there shall be in force a suspension of Designation;trading in any outstanding securities of the School Board or the Corporation; or
5.2.4 each Investor (v) a general banking moratorium shall have executed each been declared by federal, Florida or New York authorities having jurisdiction and be in force, or any new restriction on transactions in securities materially affecting the free market for securities such as the Series 2012A Certificates (including the imposition of any limitation on interest rates) or the extension of credit by, or a change to the net capital requirements of, underwriters established by the New York Stock Exchange, the Securities and Exchange Commission, any other federal or Florida agency or the Congress of the Transaction Documents United States, or by executive order, which, in the reasonable judgment of the Underwriters, materially and adversely impairs the marketability or market price of the Series 2012A Certificates; or
(vi) legislation shall be enacted, or a decision by a court of the United States shall be rendered that, in the opinion of counsel for the Underwriters, has the effect of requiring the contemplated distribution of the Series 2012A Certificates or any action or instrument pertaining thereto to which it is be registered under the Securities Act of 1933, as amended, or under Florida law, or of requiring any of the Trust Agreements, or any instrument or act pertaining thereto, to be qualified under the Trust Indenture Act of 1939, as amended; or
(vii) there shall have been any materially adverse change in the affairs of the School Board that, in the reasonable judgement of the Underwriters, materially and adversely affects the market price or marketability of the Series 2012A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2012A Certificates; or
(viii) a party and delivered the same supplement or amendment shall have been made to the CompanyOffering Statement subsequent to the date hereof that in the reasonable judgment of the Underwriters, materially and adversely affects the market price or the marketability of the Series 2012A Certificates or the ability of the Underwriters to enforce contracts for the sale of the Series 2012A Certificates; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Certificate Purchase Agreement
Conditions to Closing. 5.1 Conditions 12.1 The obligations of the Purchaser to Investors' Obligations at consummate the Closing. Each ---------------------------------------------------------- Investor's obligations transactions contemplated hereby shall be subject to effect the Closing, including without limitation its obligation to purchase satisfaction by the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor Company of each of the following events as of conditions on or before the Closing Date, any one or more of which may be waived in writing by the Purchaser:
5.1.1 the (a) The representations and warranties of the Company set forth in this Agreement and in delivered to the other Transaction Documents Purchaser by or on behalf of the Company shall be true and correct in all material respects as of such date as if made on such date the Closing Date.
(except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all b) Each of the agreementscovenants, obligations agreements and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed and satisfied by the Company on pursuant to this Agreement at or before prior to Closing shall have been duly performed and satisfied.
(c) Purchaser shall have received from Folex, Xxag & Xliox XXX, counsel to the Closing;
5.1.3 Company, an opinion dated the Closing Date shall occur on a date that is not later than February 10Date, 2004;in form and scope satisfactory to the Purchaser and its counsel with respect to the due authorization of the transactions contemplated hereby, the valid issuance of the Shares, exempt from registration and such other matters as are reasonable and customary in the transactions contemplated hereby.
5.1.4 (d) At the request of Purchaser, the Company shall have delivered to Purchaser such Investor a certificateother certificates, signed by the Chief Executive Officer instruments and Chief Financial Officer of the Company, certifying that the conditions specified documents as are reasonable and customary in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, .
13.2 The obligations of the Company to consummate the transactions contemplated hereby shall be subject to the satisfaction by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company Purchaser of each of the following events as conditions on or before the Closing Date, any one or more of which may be waived in writing by the date of the ClosingCompany:
5.2.1 the (a) The representations and warranties of each Investor the Purchaser set forth in this Agreement shall be true and correct in all material respects as of such date as if made on such date the Closing Date.
(except that b) Each of the covenants, agreements and conditions to be performed and satisfied by the extent that any such representation Purchaser pursuant to this Agreement at or warranty relates prior to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor Closing shall have complied with or been duly performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;satisfied.
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor (c) The Purchaser shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company paid the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsin accordance with Section 3.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions 8.1 The obligation of Dataware to Investors' Obligations at consummate the Closing. Each ---------------------------------------------------------- Investor's obligations transactions contemplated by this Agreement is subject to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment satisfaction (or waiver by such Investor Dataware) as of the Closing of the following conditions:
(i) All corporate or other action necessary to authorize the execution, delivery and performance of each of the following events as Transaction Documents by IHSG and the consummation of the Closing Date:transactions contemplated by each of the Transaction Documents shall have been duly and validly taken by IHSG.
5.1.1 the (ii) The representations and warranties of the Company IHSG set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such the date of this Agreement and as if of the Closing Date as though made on such date and as of the Closing Date.
(except that iii) Dataware shall have received (i) a certificate dated as of the Closing Date, signed by the Secretary or Assistant Secretary of IHSG and certifying as to (A) the Certificate of Incorporation and By-Laws of IHSG and CMC and the incumbency of officers executing each of the Transaction Documents to which IHSG is a party, and (B) resolutions of the Board of Directors of IHSG authorizing the execution, delivery and performance by IHSG of each of the Transaction Documents to which IHSG is a party, (ii) a certificate, dated as of the Closing Date, signed by an authorized officer of IHSG and certifying as to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all fulfillment of the agreements, obligations and conditions set forth in this Agreement Section and in the other Transaction Documents that are required compliance of IHSG with the covenants to be complied with or performed by the Company on or it before the Closing;, and (iii) the legal opinion of Xxxxxxx Xxxxx, counsel to IHSG, as to such matters as Dataware reasonably may request.
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company (iv) Dataware shall have delivered to such Investor a certificate, signed received copies of resignations from each of the officers and directors of CMC whose resignations shall have been requested by the Chief Executive Officer and Chief Financial Officer of Dataware prior to the Company, certifying that the conditions specified in this paragraph 5.1 Closing.
(v) There shall not have been fulfilled as a material adverse change in the assets, business, condition (financial or otherwise) or results of operations of CMC since the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;date hereof.
5.1.5 the Company (vi) IHSG or its designee shall have delivered made the offers of employment referred to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;Section 13.
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company (vii) IHSG shall have executed and delivered the Registration Rights Agreement;Distribution Agreement to Dataware.
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation (viii) All CMC Options shall have been duly authorized terminated in accordance with their terms and adopted by all requisite corporate be without further force and effect (provided that such termination may be subject to the issuance of the Dataware Options).
(ix) No action, suit or proceeding shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business instituted before or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of threatened by any court or Government Authority of competent jurisdiction that is in effect that restrains governmental or prohibits regulatory body to restrain, modify or prevent the consummation of the transactions contemplated hereby, by or that has or may have, in the other Transaction Documents reasonable opinion of Dataware, (a) the effect of restraining, modifying or by preventing the Certificate consummation of Designationsuch transactions or (b) a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of CMC.
5.2 Conditions (x) IHSG and each of its affiliates, as applicable, shall (1) have capitalized all intercompany payables owed to Company's Obligations at it by CMC, (2) have terminated all tax sharing agreements between CMC and its affiliates such that no party shall have any further rights thereunder, and (3) by a release in the form of Exhibit B hereto, have released and --------- discharged CMC from any and all claims, demands and liabilities whatsoever arising or accruing before the Closing under each and every agreement, arrangement, law, regulation or state of facts except for such matters as are explicitly covered in this Agreement.
(xi) IHSG shall have executed and delivered to Dataware a Sublease in the form of Exhibit C hereto (the "Sublease"). ---------
(xii) Dataware shall have received a schedule of the Closing Date CMC Receivables, which schedule shall include an aging of such receivables, and a balance sheet of CMC as of September 30, 1997 (the "Closing Date CMC Balance Sheet"). The Closing Date CMC Balance Sheet will reflect, and CMC will have, as of the Closing, shareholders' equity of at least $2.93 million, of which at least $1.75 million will be cash. The Company's ---------------------------------------------------- obligations to effect CMC will have, on the Closing Date, no material liabilities of a nature required to be reflected on a balance sheet prepared in accordance with US generally accepted accounting principles ("GAAP"), that are conditioned upon not reflected or reserved in the fulfillment Closing Date CMC Balance Sheet, nor any other material liabilities.
(xiii) Dataware shall have received such other instruments or documents as may be reasonably required by Dataware as necessary or appropriate to carry out the transactions contemplated hereby.
(xiv) The form and substance of all legal matters contemplated herein and all papers delivered hereunder shall be acceptable in the reasonable judgment of Dataware and its counsel.
8.2 The obligation of IHSG to consummate the transactions contemplated by this Agreement is subject to the satisfaction (or waiver by IHSG) as of the Company Closing of the following conditions:
(i) All corporate or other action necessary to authorize the execution, delivery and performance of each of the following events as Transaction Documents by Dataware, Dataware UK and the Dataware Subsidiaries and the consummation of the date transactions contemplated by each of the Closing:Transaction Documents shall have been duly and validly taken by Dataware, Dataware UK and the Dataware Subsidiaries.
5.2.1 the (ii) The representations and warranties of each Investor Dataware set forth in this Agreement shall be true and correct in all material respects as of such the date of this Agreement and as if of the Closing Date as though made on such date and as of the Closing Date.
(except that iii) IHSG shall have received (i) a certificate dated as of the Closing Date, signed by the Secretary or Assistant Secretary of Dataware or Dataware UK and certifying as to (a) the Certificate of Incorporation, By-laws and other governing documents of Dataware, Dataware UK and the Dataware Subsidiaries, and incumbency of officers executing each of the Transaction Documents to which Dataware, Dataware UK and the Dataware Subsidiaries is party, and (B) the resolutions of the Board of Directors of Dataware and Dataware UK authorizing the execution, delivery and performance by Dataware and Dataware UK, respectively, of each of the documents to which it is a party, (ii) a certificate, dated as of the Closing Date, signed by the President or Vice President of Dataware and certifying as to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all fulfillment of the agreements, obligations and conditions set forth in this Agreement that are required Section and the compliance of Dataware with the covenants to be complied with or performed by such Investor on or it before the Closing;, and (iii) the legal opinion of Xxxxxx & Dodge LLP, counsel to Dataware, as to such matters as IHSG reasonably may request.
5.2.3 there (iv) IHSG shall be no injunctionhave received copies of resignations from each of the officers and directors of the Dataware Subsidiaries whose resignations shall have been requested by IHSG prior to the Closing.
(v) There shall not have been a material adverse change in the assets, restraining order business, condition (financial or decree otherwise) or results of any nature operations of the Dataware Services Business since the date hereof.
(vi) Dataware shall have executed and delivered the Distribution Agreement to IHSG.
(vii) No action, suit or proceeding shall have been instituted before or threatened by any court or Government Authority of competent jurisdiction that is in effect that restrains governmental or prohibits regulatory body to restrain, modify or prevent the consummation of the transactions contemplated hereby, or that has or may have, in the reasonable opinion of IHSG, (a) the effect of restraining, modifying or preventing the consummation of such transactions or (b) a materially adverse effect on the assets, properties, business, operations or condition (financial or otherwise) of the Dataware Services Business.
(viii) Dataware and each of its affiliates, as applicable, shall (1) have capitalized all intercompany payables owed to it by any of the other Transaction Documents Dataware Subsidiaries and (2), by a release in the form of Exhibit B hereto, have released and discharged the Dataware --------- Subsidiaries from any and all claims, demands and liabilities whatsoever arising or by accruing before the Certificate Closing under each and every agreement, arrangement, law, regulation or state of Designation;facts except for such matters as are explicitly covered in this Agreement.
5.2.4 each Investor (ix) IHSG shall have executed each received such other instruments or documents as may be reasonably required by IHSG as necessary or appropriate to carry out the transactions contemplated hereby.
(x) The form and substance of all legal matters contemplated herein and all papers delivered hereunder shall be acceptable in the Transaction Documents to which it is a party reasonable judgment of IHSG and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsits counsel.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at The Closing of the Closing. Each ---------------------------------------------------------- Investor's obligations to effect sale of the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are Shares is conditioned upon the fulfillment or waiver by such Investor of each satisfaction of the following events as of conditions precedent on or before the Closing Date:
5.1.1 (i) as of the Closing, no legal action, suit or proceeding shall be pending against the Company that seeks to restrain or prohibit the transactions contemplated by this Agreement;
(ii) the representations and warranties of the Company set forth and the Subscribers contained in this Agreement shall have been true and correct in all material respects on the other Transaction Documents date of this Agreement (except whether such representations are qualified by material or material adverse effect, which shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty respects) and shall be true and correct in all respects as of that particular date);
5.1.2 the Closing as if made on the Closing Date and the Company shall have performed, satisfied and complied with or performed in all material respects all of with the agreementscovenants, obligations agreements and conditions set forth in this Agreement and in the other Transaction Documents that are required to be performed, satisfied or complied with or performed by the Company on in connection with the consummation of the transactions contemplated by the Transaction Documents at or before the Closing;
5.1.3 prior to the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 and the Company shall have delivered to such Investor deliver a certificate, signed executed by the its Chief Executive Officer and Chief Financial Officer Officer, dated as of the CompanyClosing Date, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as foregoing is true;
(iii) the Company shall deliver to the Subscribers, a certificate from the Company, signed by its Secretary or Assistant Secretary, including incumbency specimen signatures of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty any signatory of any Transaction Document of the Company made herein;
5.1.5 and certifying that the attached copies of the Charter and the Bylaws, and resolutions of the Board of Directors of the Company shall have delivered to such Investor an opinion of counsel for the Companyapproving this Offering, dated as of such dateare all true, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock complete and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed correct and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be remain in full force and effect;
5.1.9 there (iv) The Company and Eloxx shall have been no material adverse change in provided the Company's consolidated business or financial condition since Subscribers with evidence that the date closing of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at Merger will occur immediately after the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designationhereunder.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered v) Each Subscriber transferred to the Company its respective portion of the Aggregate Purchase Price, and the Aggregate Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsshall not be less than US $10,000,000.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The following shall be conditions precedent to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor effectiveness of each of the following events as of the Closing Datethis Agreement:
5.1.1 (a) the representations and warranties of AFC, AmeriCredit and the Company Issuer set forth or referred to in this Agreement and in the other Transaction Documents Article IV hereof shall be true and correct in all material respects as of such date as if made on such date the Closing Date (except that to the extent that any such representation or warranty relates for representations and warranties which relate to a particular specific date, such representation or warranty which shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date), and no event which of itself or with the giving of notice or lapse of time, or both, would constitute a Termination Event shall have occurred and be continuing on the Closing Date;
(b) the Fee Letters and the Supplemental Fee Letter shall have been executed and delivered by the Sellers to the Administrative Agent; and
5.1.11 there (c) the Administrative Agent and the Agents shall have received on the Closing Date the following items, each of which shall be no injunction, restraining order or decree in form and substance satisfactory to the Agents:
(i) an Officer’s Certificate of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits AFC confirming the consummation satisfaction of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions conditions set forth in clause (a) (as to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)AFC only) above;
5.2.2 each Investor shall have complied with or performed all (ii) an Officer’s Certificate of AmeriCredit confirming the satisfaction of the agreements, obligations and conditions set forth in this Agreement that are required clause (a) (as to be complied with or performed by such Investor on or before the Closingrepresentations and warranties of AmeriCredit only) above;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation (iii) an Officer’s Certificate of the transactions contemplated hereby, by Issuer confirming the other Transaction Documents or by satisfaction of the Certificate conditions set forth in clause (a) (as to representations and warranties of Designationthe Issuer only) above;
5.2.4 each Investor shall have executed (iv) a copy of (A) the charter and by-laws of, and an incumbency certificate with respect to its officers executing any of the Related Documents on the Closing Date on behalf of, each of AmeriCredit and AFC, certified by an authorized officer, and (B) resolutions of the Transaction Board of Directors (or an authorized committee thereof) of each of AmeriCredit and AFC with respect to the Related Documents to which it is party, certified by an authorized officer;
(v) a party and delivered the same certificate issued no earlier than 30 days prior to the CompanyClosing Date by an appropriate Governmental Authority evidencing the legal existence and good standing of each of AFC, the Issuer and AmeriCredit;
(vi) the favorable written opinions of counsel for AFC, AmeriCredit, and the Issuer, addressed to the Administrative Agent and each Agent and Class A Purchaser, or accompanied by a letter providing that the Administrative Agent and each Agent and Class A Purchaser may rely on such opinions as if they were addressed to them, and dated the Closing Date, covering general corporate matters, the due execution and delivery of, and the enforceability of, each of the Related Documents to which the AFC, AmeriCredit and the Issuer is party, true sale, bankruptcy, bank insolvency, security interest and tax matters and such other matters as the Administrative Agent or any Agent may request; provided, that certificate of title opinions with respect to Financed Vehicles located in California and Florida shall be delivered to the Administrative Agent and the Agents within fifteen calendar days of the Closing Date;
(vii) an executed copy of the Sale and Servicing Agreement, the Indenture, the Custodial Agreement, the Trust Agreement and the Master Sale and Contribution Agreement;
(viii) evidence satisfactory to the Administrative Agent that financing statements duly executed by AmeriCredit, the Issuer and AFC or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrative Agent or any Agent or Class A Purchaser, desirable under the Uniform Commercial Code of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the Related Documents have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid;
(ix) counterparts of this Agreement (whether by facsimile or otherwise) executed by each of the Issuer, the Sellers, the Servicer, the Administrative Agent and Noteholders representing the Required Class A Owners and Required Class A Purchasers; and
5.2.5 each Investor (x) such additional documents, instruments, certificates or letters as the Administrative Agent or any Agent or Class A Purchaser may reasonably request.
(d) the Class A Notes, the Class B Notes and the Class C Notes shall have delivered been duly issued in accordance with the Sale and Servicing Agreement and the Indenture and the Net Spread Reserve Account and the Collateral Account shall have been established with the Trustee;
(e) the Sellers shall have paid all fees payable on or before the date of such borrowing to the Company Administrative Agent (for its own account or for the Purchase Price for Preferred Stock account of the initial Class A Purchasers and Agents) described in the Supplemental Fee Letter and all reasonable and appropriately invoiced costs and expenses of the Administrative Agent and the Warrants being purchases initial Agents and Class A Purchasers payable by it at the Sellers, to the extent provided herein, in connection with the transactions contemplated hereby;
(f) the Administrative Agent and the Agents shall have received the following:
(i) within 45 days of the Closing Date a report by wire transfer nationally recognized independent certified public accountants (the “Independent Accountants”) on the results of immediately available fundsan audit performed by them which report is in form and substance satisfactory to each Agent; and
(ii) the duly executed Class A Note(s) registered in the name of each Agent as nominee on behalf of the Class A Owners in its Purchaser Group.
(g) evidence satisfactory to each initial CP Conduit that its purchase of Class A Notes hereunder will not result in a reduction or withdrawal of the rating of its or its related financing conduit’s Commercial Paper Notes by Moody’s, Standard & Poor’s or any other nationally recognized rating agency rating its Commercial Paper Notes.
Appears in 1 contract
Conditions to Closing. 5.1 8.1 F5 Finishes Closing Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its F5 Finishes’ obligation to purchase close the Preferred Stock and Warrants at Transaction is subject to the Closing, are conditioned upon the fulfillment or waiver by such Investor satisfaction of each of the following events as of conditions (the “F5 Finishes Closing DateConditions”) at or prior to Closing:
5.1.1 the (a) Shareholder’s representations and warranties of the Company set forth in this Agreement and Article 4, as qualified or limited by any exceptions in the other Transaction Documents shall be Schedules to Article 4, are true and correct in all material respects as of such date on the Closing Date as if made on such date at and as of Closing (except other than representations and warranties that to the extent that any such representation or warranty relates to address matters as of a particular certain date, such representation or warranty shall be which were true and correct in all respects as of that particular date);
5.1.2 (b) Shareholder has executed and delivered all of the Company shall have documents and instruments that he is required to execute and deliver or enter into prior to or at Closing, and has performed, complied with or performed satisfied in all material respects all of the agreementsother obligations, obligations agreements and conditions set forth in under this Agreement and in the other Transaction Documents that are he is required to be complied perform, comply with or performed by the Company on satisfy at or before the prior to Closing;
5.1.3 the Closing Date shall occur (c) each Notice or filing listed on a date that Schedule 4.5 has been duly given or made, and each Consent or Permit listed on Schedule 4.5 has been obtained and is not later than February 10, 2004in full force;
5.1.4 (d) F5 Finishes and Shareholder have agreed on the Company shall have delivered to such Investor a certificateFinancial Statements and the Interim Financial Statements;
(e) the Company’s adjusted earnings before interest, signed by taxes, depreciation and amortization for the Chief Executive Officer and Chief Financial Officer 12-month period ended December 31, 2018 was $764,039;
(f) consistent with Section 8.1(e), above, after Xxxxxx, LLP completes its audit of the Company, certifying that F5 Finishes is satisfied with the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made hereinCompany’s Financial Statements;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been (g) no material adverse change in the Company's consolidated business ’s assets, financial condition, operations, operating results or financial condition prospects has occurred since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documentsthis Agreement;
5.1.10 (h) no Suit has been initiated or Threatened since the date of this Agreement that challenges or seeks damages or other relief in connection with the Transaction or that could have the effect of preventing, delaying, making illegal or otherwise interfering with the Transaction;
(i) the Registration Statement has been declared effective;
(j) F5 Finishes has approved the pricing and other terms of the IPO;
(k) the actual IPO Share Price of the F5 Finishes Stock is at least seventy percent (70%) of the Baseline IPO Share Price;
(l) the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants cash as of such date)Closing in an amount not less than $10,000; and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation (m) closing of the transactions contemplated hereby, by other combination agreements with the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each Combining Companies and closing of the following events as IPO have both taken place concurrently with the closing of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that this Agreement. F5 Finishes may waive any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth condition specified in this Agreement that are required to be complied with or performed Section 8.1 by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have written waiver delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it Shareholder at the Closing by wire transfer of immediately available fundsany time prior to or at Closing.
Appears in 1 contract
Conditions to Closing. 5.1 SECTION 5.1. Conditions to Investors' Obligations at the ClosingCompany's Obligation to Sell the Shares and the Warrants. Each ---------------------------------------------------------- InvestorThe Purchaser understands that the Company's obligations obligation to effect issue and sell the ClosingShares and the Warrants is conditioned upon:
(a) Delivery by the Purchaser to the Company of a duly executed copy of this Agreement and the Registration Rights Agreement and the Purchase Price, including without limitation its in cash, in full;
(b) The accuracy as of the date hereof of the representations and warranties of the Purchaser contained in this Agreement, and performance by the Purchaser of all covenants and agreements of the Purchaser required to be performed by it on or before the date hereof; and
(c) The continued listing of the Common Stock on the Nasdaq National Market through the date hereof.
SECTION 5.2. Conditions to the Purchaser's Obligation to Purchase the Shares and the Warrants. The Company understands that the Purchaser's obligation to purchase the Preferred Stock Shares and the Warrants at is conditioned upon:
(a) Delivery by the ClosingCompany to the Purchaser of a duly executed copy of this Agreement, are conditioned upon the fulfillment or waiver by such Investor Warrant Agreement and the Registration Rights Agreement;
(b) Delivery of each of certificates evidencing the following events Shares to the Purchaser;
(c) The accuracy as of the Closing Date:
5.1.1 date hereof of the representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed performance by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer hereof of all covenants and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty agreements of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor it on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companydate hereof; and
5.2.5 each Investor shall have delivered to (d) The continued listing of the Company Common Stock on the Purchase Price for Preferred Stock and Nasdaq National Market through the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsdate hereof.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' each Investor’s Obligations at the Closing. Each ---------------------------------------------------------- Investor's ’s obligations to effect the Closing, including including, without limitation limitation, its obligation to purchase the Preferred Stock and Warrants at the ClosingSecurities set forth opposite its name on Exhibit A, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Company shall have delivered to such Investor (i) an opinion of New York counsel for the Company, dated as of the Closing Date shall occur on a date that is not later than February 10Date, 2004in the form attached hereto as Exhibit D-1, and (ii) an opinion of Florida counsel for the Company, dated as of the Closing Date, in the form attached hereto as Exhibit D-2;
5.1.4 the Company shall have executed and delivered to such Investor a certificate representing the Shares and the original Warrant being purchased by such Investor at the Closing;
5.1.5 the Company shall have executed and delivered to such Investor the Registration Rights Agreement;
5.1.6 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer Secretary or an Assistant Secretary of the Company, attaching (i) the articles of incorporation and by-laws of the Company and (ii) resolutions passed by the Board of Directors authorizing the transactions contemplated hereby and by the other Transaction Documents, and certifying that the conditions specified in this paragraph 5.1 have been fulfilled as such documents are true and complete copies of the Closingoriginals and have not been amended or superseded, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been occurred no material adverse change in the Company's ’s consolidated business or financial condition since the date of the Company's ’s most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 5.1.8 there shall be no injunction, restraining order or decree of any nature of any court or Government Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents or by the Certificate of DesignationDocuments.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The obligations of the parties to Investors' Obligations at consummate --------------------- the Closing. Each ---------------------------------------------------------- Investor's obligations transactions contemplated by this Agreement shall be subject to effect satisfaction, on or before the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor Closing of each of the following events as of conditions unless waived in writing by the Closing Dateparty to be so satisfied:
5.1.1 (a) The IPO shall have been consummated and closed and the Company shall have wired the Cash Redemption Price to XXX;
(b) The representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents XXX contained herein shall be true and correct accurate in all material respects as of such the date as if when made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects at and as of that particular the Closing as though made at and as of such date);
5.1.2 the (c) The Company shall have complied with or performed furnished to XXX and the Shareholder a certificate of the Company's President to the effect that: (i) the IPO has been consummated, and (ii) all representations and warranties of the Company contained in this Agreement are true and accurate in all material respects all at and as of the agreementsClosing, obligations and
(d) XXX and conditions set forth the Shareholder shall have furnished to the Company their certificate to the effect that all representations and warranties of XXX and the Shareholder contained in this Agreement are true and accurate in all material respects at and as of the Closing.
(e) XXX and the Shareholder shall have delivered to the Company their duly executed release in the other Transaction Documents that are required form of Exhibit A attached hereto pursuant to be complied with or performed by which --------- XXX and the Shareholder release the Company on or before from all known and unknown claims and obligations of any kind whatsoever, other than as arise under this Agreement and under that certain Trading Agreement of even date herewith between the Closing;Company and XXX ("Trading Agreement") a copy of which is attached hereto as Exhibit B. ---------
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the (f) The Company shall have delivered to such Investor the Shareholder and XXX a certificate, signed by duly executed release in the Chief Executive Officer and Chief Financial Officer form of Exhibit C attached hereto pursuant to which the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the --------- Company shall have delivered release the Shareholder, XXX, Xxxx X. Xxxxxxx and Xxxxxxx X. Spring from all known and unknown claims and obligations of any kind whatsoever, other than (with respect to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock XXX and the Warrants being purchased by such Investor;Shareholder) as arise under this Agreement and under the Trading Agreement.
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and (g) The Trading Agreement shall be in full force and effect;
5.1.9 there shall have been no material adverse change in effect subject only to the Company's consolidated business or financial condition since the date occurrence of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants IPO as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events a condition precedent as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundstherein.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The obligation of the Investor to Investors' Obligations purchase and pay for the Series B Preferred to be purchased by the Investor on the Closing Date is subject to the satisfaction, at the Closing. Each ---------------------------------------------------------- Investor's obligations or prior to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Dateconditions:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 a) the Company shall have complied with or performed in all material respects all of the agreements, obligations duly authorized and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that filed the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed (the "Certificate") with the Secretary of State of the State of DelawareNevada, substantially in the form attached hereto as Exhibit A;
(b) the Company and the Investor shall have entered into an amendment to the Registration Rights Agreement dated May 17, 2000 between Investor and the Company (the "Amended Registration Rights Agreement"), substantially in the form attached hereto as Exhibit B;
(c) all representations of the Company to the Investor shall be in full force true, correct and effectcomplete as of the Closing Date;
5.1.9 (d) there shall have been be no material adverse change in the business, assets, financial condition, operation and results of operations of the Company since June 30, 2000, which, in the Investor's sole judgment, is materially adverse to the Company's consolidated business or financial condition since ;
(e) the date Investor, through its personnel and representatives, shall have completed and been satisfied with the results of their due diligence review of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)business; and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by (f) the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Investor:
(i) (A) copies of the resolutions of the Company's Board of Directors authorizing and approving this Agreement and all of the transactions and agreements contemplated hereby and thereby, and (B) the names of the officer or officers of the Company authorized to execute this Agreement and any and all documents, agreements and instruments contemplated herein, all certified by the Purchase Price for Preferred Stock Secretary of the Company to be true, correct, complete and the Warrants being purchases by it at in full force and effect and unmodified as of the Closing by wire transfer Date;
(ii) a certificate of immediately available fundsexistence for the Company from the Secretary of State of Nevada;
(iii) a certificate of account status for the Company from the Comptroller of the State of Nevada;
(iv) certificates from each state where the Company is required to be qualified as a foreign corporation showing such qualification, dated as of a date within ten (10) days of the Closing Date; and
(v) such other documents, instruments, and certificates as the Investor may reasonably request.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions On or prior to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations date of execution hereof, the Seller shall deliver or cause to effect be delivered to the ClosingPurchaser the following documents, including without limitation its obligation instruments and fees all of which shall be in a form and substance acceptable to purchase the Preferred Stock Purchaser:
(a) Duly executed copies of this Agreement, the Performance Guarantee and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each Fee Letter.
(b) A certificate of the following events as Secretary of the Closing Date:
5.1.1 the representations and warranties Seller certifying (i) a copy attached thereto of the Company set forth in resolutions of the Board of Directors and of the sole shareholder authorizing and approving the execution and delivery of this Agreement and in the other Transaction Documents shall to be true delivered by the Seller and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 performance by the Company shall have complied with or performed in all material respects all Seller of the agreements, obligations transactions contemplated hereby or thereby; (ii) a copy of the articles of incorporation of the Seller; and conditions set forth in (iii) the true names and signatures of the Persons authorized on behalf of the Seller to execute such documents (on which certificate the Purchaser may conclusively rely until such time as the Purchaser shall receive from the Secretary of the Seller a revised certificate meeting the requirements of this Section 4.1(b).
(c) A certificate of the Secretary of the Performance Guarantor certifying (i) a copy attached thereto of the resolutions of the Board of Directors or other corporate authorities authorizing and approving the execution and delivery of this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before Performance Guarantor, and the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed performance by the Chief Executive Officer Performance Guarantor of its obligations thereunder; (ii) the true names and Chief Financial Officer signatures of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as Persons authorized on behalf of the Closing, it being understood that Performance Guarantor to execute this Agreement (on which certificate the Purchaser may conclusively rely until such Investor may rely on such certificate time as though it were a representation and warranty the Purchaser shall receive from the Secretary of the Company made herein;Performance Guarantor a revised certificate meeting the requirements of this Section 4.1(c).
5.1.5 the Company shall have delivered to such Investor an (d) A favourable opinion of legal counsel for the Company, dated as of such dateSeller and the Performance Guarantor reasonably acceptable to the Purchaser, in substantially the form set forth of Exhibit F hereto and as to such other matters as the Purchaser may reasonably request.
(e) All fees stated to be payable by the Seller on Exhibit 5.1.5 hereto;or prior to such date under the terms of the Fee Letter .
5.1.6 (f) Such other approvals, opinions or documents as the Company Purchaser may reasonably request.
(g) Each Note Rating Agency shall have delivered duly executed certificates representing confirmed its rating of the Preferred Stock and Commercial Paper of the Warrants being purchased by such Investor;Purchaser notwithstanding the entering into of the this Agreement.
5.1.7 the Company (h) The Purchaser shall have executed completed its due diligence on the pool of Receivables and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate actionsatisfied with the results thereof.
(i) Acknowledged copies or time stamped receipt copies of proper financing statements or similar filings, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business on or financial condition since before the date of the Company's most recent unaudited financial statements contained Purchase under the PPSAs of all jurisdictions necessary to perfect the sale of the Purchased Interest from the Seller to the Purchaser.
(j) Evidence of the discharge and release of all security interests and rights of any person in any of the Disclosure Documents;
5.1.10 Transaction Assets granted by the Company Seller and copies of any estoppel or no-interest letters which the Purchaser shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of reasonably requested to confirm that any registration or filing against the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price Seller made in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree favour of any nature of Person that could be relied upon to perfect or protect an Adverse Claim in any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designationsuch property does not and will not be relied upon for such purpose.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment (k) Completed PPSA search results, dated on or waiver by the Company of each of the following events as of before the date of the Closing:
5.2.1 Purchase listing the representations and warranties of each Investor shall be true and correct financing statements filed in all material respects as of such date as if made on such date (except that the jurisdictions referred to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsSection 4.1(i) above.
Appears in 1 contract
Samples: Receivables Purchase Agreement (Wintrust Financial Corp)
Conditions to Closing. 5.1 8.1 F5 Finishes Closing Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its F5 Finishes’ obligation to purchase close the Preferred Stock and Warrants at Transaction is subject to the Closing, are conditioned upon the fulfillment or waiver by such Investor satisfaction of each of the following events as of conditions (the “F5 Finishes Closing DateConditions”) at or prior to Closing:
5.1.1 the (a) Shareholder’s representations and warranties of the Company set forth in this Agreement and Article 4, as qualified or limited by any exceptions in the other Transaction Documents shall be Schedules to Article 4, are true and correct in all material respects as of such date on the Closing Date as if made on such date at and as of Closing (except other than representations and warranties that to the extent that any such representation or warranty relates to address matters as of a particular certain date, such representation or warranty shall be which were true and correct in all respects as of that particular date);
5.1.2 (b) Shareholder has executed and delivered all of the Company shall have documents and instruments that he is required to execute and deliver or enter into prior to or at Closing, and has performed, complied with or performed satisfied in all material respects all of the agreementsother obligations, obligations agreements and conditions set forth in under this Agreement and in the other Transaction Documents that are he is required to be complied perform, comply with or performed by the Company on satisfy at or before the prior to Closing;
5.1.3 the Closing Date shall occur (c) each Notice or filing listed on a date that Schedule 4.5 has been duly given or made, and each Consent or Permit listed on Schedule 4.5 has been obtained and is not later than February 10, 2004in full force;
5.1.4 (d) F5 Finishes and Shareholder have agreed on the Company shall have delivered to such Investor a certificateFinancial Statements and the Interim Financial Statements;
(e) the Company’s adjusted earnings before interest, signed by taxes, depreciation and amortization for the Chief Executive Officer and Chief Financial Officer 12-month period ended December 31, 2018 was $ 698,247;
(f) consistent with Section 8.1(e), above, after Xxxxxx, LLP completes its audit of the Company, certifying that F5 Finishes is satisfied with the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made hereinCompany’s Financial Statements;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been (g) no material adverse change in the Company's consolidated business ’s assets, financial condition, operations, operating results or financial condition prospects has occurred since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documentsthis Agreement;
5.1.10 (h) no Suit has been initiated or Threatened since the date of this Agreement that challenges or seeks damages or other relief in connection with the Transaction or that could have the effect of preventing, delaying, making illegal or otherwise interfering with the Transaction;
(i) the Registration Statement has been declared effective;
(j) F5 Finishes has approved the pricing and other terms of the IPO;
(k) the actual IPO Share Price of the F5 Finishes Stock is at least seventy percent (70%) of the Baseline IPO Share Price;
(l) the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants cash as of such date)Closing in an amount not less than $150,000; and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation (m) closing of the transactions contemplated hereby, by other combination agreements with the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each Combining Companies and closing of the following events as IPO have both taken place concurrently with the closing of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that this Agreement. F5 Finishes may waive any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth condition specified in this Agreement that are required to be complied with or performed Section 8.1 by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have written waiver delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it Shareholder at the Closing by wire transfer of immediately available fundsany time prior to or at Closing.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Each Purchaser's Obligations at the Closing. Each ---------------------------------------------------------- Investor----------------------------------------------------- Purchaser's obligations to effect at the Closing, including without limitation his or its obligation to purchase the Preferred Stock Notes and Warrants at the ClosingShares, are conditioned upon the fulfillment (or waiver by such Investor Purchaser) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer each of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company other Purchasers shall have executed and delivered the Registration Rights Agreementapplicable Transaction Documents;
5.1.8 5.1.4 except for the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State effects of the State Company's continued use of Delawarecash in the ordinary course of business, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change changes in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in delivered to the Disclosure DocumentsPurchasers;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 5.1.5 there shall be no injunctionaction or proceeding by or before any federal, restraining order state, local or decree of any nature of foreign government or any court or Government Authority of competent jurisdiction that is in effect that restrains jurisdiction, administrative agency or prohibits commission or other governmental authority or instrumentality, domestic or foreign (a "Governmental Entity") or ------------------- NASD, pending or threatened, challenging or seeking to restrain or prohibit the consummation purchase and sale of the Securities or any of the other transactions contemplated hereby, by this Agreement or seeking to obtain damages from either party hereto in connection with the purchase and sale of the Securities or any of the other Transaction Documents or transactions contemplated by the Certificate of Designation.this Agreement; and
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 5.1.6 there shall be no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary injunction, restraining order permanent injunction or decree of other order, enacted, entered, promulgated, enforced or issued by any nature of any court Governmental Entity or Government Authority of competent jurisdiction that is in effect that restrains other legal restraint or prohibits prohibition preventing the consummation purchase and sale of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsSecurities in effect.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Healthcentral Com)
Conditions to Closing. 5.1 Conditions The obligation of each Purchaser to Investors' Obligations purchase and pay for the Shares to be delivered to it at the Closing. Each ---------------------------------------------------------- Investor's obligations Closing shall be subject to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each satisfaction of the following events conditions as of the Closing Date:
5.1.1 (A) Concurrent with the Closing, the Company, the Purchaser and the required number of other signatories to the Third Amended and Restated Investors Agreement shall have entered into the Second Amendment to the Third Amended and Restated Investors Agreement in the form attached hereto as Exhibit C;
(B) Each Purchaser shall have received from Holland & Hart XXX, counsel for the Company, an opinion in substantially the form attached hereto as Exhibit D, dated as of the Closing Date;
(C) The Company's stockholders shall have approved the Third Amended and Restated Certificate of Incorporation, a copy of which is included in Exhibit B attached hereto (the "Certificate of Incorporation") and shall have waived any preemptive rights they may have;
(D) The Company shall have filed the Certificate of Incorporation with the Delaware Secretary of State;
(E) Any applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act"), with respect to El Paso's acquisition of Shares in the Closing shall have expired or otherwise been terminated;
(F) The Company shall provide a secretary's or officer's certificate regarding (i) the accuracy of the representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing Date, (ii) the satisfaction or fulfillment of all conditions to the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of (iii) the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion certification of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.resolutions
Appears in 1 contract
Samples: Series C Preferred Stock Purchase Agreement (Velocom Inc)
Conditions to Closing. 5.1 Conditions The Closing is subject to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment satisfaction or waiver by such Investor of each the party to be benefited thereby of the following events as of the Closing Dateconditions:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the a) The Company shall have delivered or caused to be delivered to each Purchaser the following:
(i) this Agreement duly executed by the Company;
(ii) a certificate evidencing a number of shares of Preferred Stock equal to the Purchaser’s Subscription Amount divided by the Stated Value, registered in the name of such Investor Purchaser;
(iii) a legal opinion of Company Counsel, in the form of Exhibit D attached hereto, addressed to each Purchaser;
(iv) the Registration Rights Agreement duly executed by the Company;
(v) a certificate, signed by the Secretary of the Company, attaching (i) the charter and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Purchaser may rely on such certificate as a representation and warranty of the Company made herein;
(vi) the Certificate of Designation executed by the Company and accepted by the Secretary of State of Nevada;
(ix) a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 Section have been fulfilled as of the Closing, it being understood that such Investor the Purchaser may rely on such certificate as though it were a representation and warranty of the Company made herein;; and
5.1.5 (x) a copy of Press Release or Current Report on Form 8-K describing the Company Transaction Documents.
(b) At the Closing, the Purchaser shall have delivered or caused to such Investor an opinion of counsel for be delivered to the Company, dated as of such date, in substantially Company the form set forth on Exhibit 5.1.5 heretofollowing:
(i) this Agreement duly executed by the Purchaser;
5.1.6 (ii) the Company shall have delivered duly executed certificates representing Subscription Amount, which is payable in full by delivering the Preferred Stock New Note, the Extended Note and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Purchaser’s Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor (iii) the Registration Rights Agreement duly executed by the Purchaser, including questionnaire.
(iv) the Extended Note;
(v) the New Note; and
(vi) the Purchaser’s Common Stock.
(c) All representations and warranties of the other party contained herein shall remain true and correct as of the Closing Date and all covenants of the other party shall have delivered been performed if due prior to such date.
(d) From the date hereof to the Company Closing Date, trading in the Purchase Price Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of each Purchaser, makes it impracticable or inadvisable to purchase the shares of Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsClosing.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The obligation of Buyer to Investors' Obligations at consummate the Closing. Each ---------------------------------------------------------- Investor's obligations transactions contemplated by this Agreement is subject to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each satisfaction of the following events as of conditions on or before the Closing Date:
5.1.1 the (a) The representations and warranties of the Company set forth in Article 3 and the information set forth in the schedules to this Agreement shall have been true and correct in all material respects as of the effective date of this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date the Closing Date as if though made on such date (the Closing Date, except that to the extent that any such representation or warranty relates to for those representations and warranties which address matters only as of a particular date, such representation or warranty which shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required continue to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty and the Sellers shall be true and correct in all respects as of have delivered to Buyer a certificate to that particular date)effect;
5.2.2 each Investor (b) The Sellers and the Companies shall have performed or complied with or performed all of the agreementscovenants and agreements required under this Agreement, obligations and conditions set forth in this Agreement the Sellers shall have delivered to Buyer a certificate to that are required to be complied with or performed by such Investor on or before the Closingeffect;
5.2.3 there shall be no injunction, restraining (c) No order or decree of any nature of any court or Government Authority of competent jurisdiction that is administrative agency shall be in effect that which restrains or prohibits the transactions contemplated hereby, and there shall not have been threatened, nor shall there be pending, any action or proceeding by or before any court or governmental agency or other regulatory or administrative agency or commission: (i) challenging any of the transactions contemplated by this Agreement or seeking monetary relief by reason of the consummation of such transactions; (ii) by any present or former owner of any equity interest in any Company (whether through a derivative action or otherwise) against any Seller, any Company or any officer, manager, partner, director or member of any Company; or (iii) which could reasonably be expected to have a material adverse effect on the business or condition (financial or otherwise) of the Companies;
(d) Each Seller shall have executed and delivered to Buyer original or facsimile counterparts of each Transaction Document to which he, she or it is a party, and the Escrow Agent shall have executed and delivered to Buyer original or facsimile counterparts to the Escrow Agreement, in each case in accordance with the provision in Section 8.1 permitting the use of facsimile copies;
(e) Any and all governmental approvals and all consents by third parties that are required for the transfer of the Ownership Interests and the consummation of the transactions contemplated hereby, by shall have been obtained and no such approval or consent shall have been conditioned upon the other Transaction Documents modification in any material respect, cancellation or by termination of any Material Contract, Lease or Permit or shall impose on Buyer or any Company any material condition, provision, requirement or additional cost not presently imposed upon the Certificate of DesignationSellers or any Company or any condition that would be materially more restrictive after the Closing than the conditions presently imposed on the Sellers or the Companies, as the case may be;
5.2.4 each Investor (f) Buyer shall have executed received reasonable confirmation from the Sellers (including payoff letters from each of the Transaction Documents to which it is a party Companies’ lenders) that all Funded Indebtedness has been, or will be in connection with the Closing, satisfied in full and delivered of the same absence of any and all Encumbrances affecting any Company, the Facility or Business;
(g) All necessary filings pursuant to the Company; andHSR Act shall have been made and all applicable waiting periods thereunder shall have expired or been terminated;
5.2.5 each Investor (h) The Sellers shall have delivered to Buyer the Company the Purchase Price for Preferred Stock Audited Statements and the Warrants being purchases Interim Unaudited Statements, and there shall be no material differences between the Audited Statements and the Unaudited 2005 Statements;
(i) The Sellers shall have delivered an opinion of counsel, dated as of the Closing Date and addressed to Buyer, substantially in the form set forth as Exhibit “E”;
(j) Each Seller shall have delivered to Buyer a tax certificate under Treas. Reg. 1.1445-2(b)(2) stating that such Seller is not a “foreign person” within the meaning of Section 1445 of the Code, in form and substance reasonably satisfactory to Buyer;
(k) Buyer shall have received a good standing certificate and copies of the Charter Documents of each Company from the Sellers, in each case dated as of a date not more than thirty (30) days prior to the Closing Date, and the original minute books of each Company which shall contain complete and accurate records of all material actions by it each Company and its directors, shareholders or partners, as the case may be;
(l) Buyer shall have received an estoppel letter from the authority with jurisdiction over the Facility, addressed to Macquarie Infrastructure Company, Inc., and its subsidiaries and their lenders, consenting to the transactions contemplated hereby and confirming (i) a true, correct and complete copy of the Ground Lease (which shall be attached to the estoppel letter), (ii) the term of the Ground Lease, (iii) that no breach or default exists under the Ground Lease, and no amounts are past due thereunder, (iv) that the authority has not repudiated the Ground Lease and (v) that the Ground Lease is in full force and effect; provided, that, the Sellers and the Companies shall have used commercially reasonable efforts to obtain, in addition, confirmation from the authority that (x) except as set forth in Schedule 3.8(b)(vii), no additional capital expenditures are required under the Ground Lease and (y) no subsidence has occurred at the Facility or the runways or aprons appurtenant thereto;
(m) Buyer shall have received such information and certifications from the Sellers, the Companies and the Companies’ accountants to enable Buyer and its Affiliates to prepare any and all disclosure material as may be required by applicable federal securities Laws and regulations promulgated by the Securities and Exchange Commission pursuant thereto (including financial statements and related notes in compliance with federal securities Laws), including consents of the Companies’ accountants to the inclusion of such financial statements in appropriate filings with the Securities and Exchange Commission;
(n) The transactions contemplated by the Xxxxxxx Purchase Agreement shall have been consummated;
(o) Buyer shall have received releases and waivers from the Sellers, each in the form of Exhibit “F”;
(p) Buyer shall have received written resignations from each of the officers and directors listed on Schedule 3.1(ii), which resignations shall be effective as of the Closing Date;
(q) Buyer shall have received reasonable confirmation from Sellers that ACS is and has been a validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code, and the comparable provisions of any relevant Tax Law in each state or local jurisdiction in which it conducts business, at all times since its inception;
(r) A sufficient number of Company Employees to operate and conduct the Facility and the Business as operated and conducted as of the Effective Date shall have accepted employment with one of the Companies, Buyer or a Buyer Affiliate on or prior to the Closing;
(s) The Companies shall have terminated any and all management agreements entered into by wire transfer and between any of immediately available fundsthe Companies and AAC; and
(t) there shall not have been any material adverse change with respect to the Facility or the Business since June 30, 2006.
Appears in 1 contract
Samples: Business Purchase Agreement (Macquarie Infrastructure CO LLC)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock Shares and Warrants a Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10March 2, 20042005;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such datethe Closing Date, in substantially the form set forth on attached hereto as Exhibit 5.1.5 F hereto;
5.1.6 the Company shall have delivered to such Investor a duly executed certificates certificate representing the Preferred Stock and the Warrants Warrant being purchased by such Investor;
5.1.7 the Company shall have executed and delivered to such Investor the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted such Investor a certificate, signed by all requisite corporate action, shall have been duly filed with the Secretary of State or an Assistant Secretary of the State Company, attaching (i) the charter and By-Laws of Delawarethe Company and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and shall be in full force certifying that such documents are true and effectcomplete copies of the originals and have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 the Company shall have obtained the written agreement of each Key Employee to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.2(f) hereof;
5.1.10 there shall have been occurred no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 5.1.11 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) upon exercise of the Warrants the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such dateexercise); and;
5.1.11 5.1.12 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents Documents; and
5.1.13 the Company shall have delivered a letter from Nearshore Petroleum Corporation ("Nearshore"), addressed to the Investors, under which Nearshore agrees, promptly following the Closing, to reserve and grant to each Investor an option to purchase, for a period of eighteen (18) months beginning on the Closing Date, such Investor's Pro Rata Share of an undivided one percent (1%) Over Riding Royalty Interest in the Sawn Lake Oil Sands Project as described in the Royalty Agreement between Mikwec Energy Canada Ltd. and Nearshore as executed December 12, 2003 (the "Option to ---------- Purchase"), exercisable for the aggregate sum of US$1,000,000 payable to Nearshore, and to execute and deliver all such instruments and documents, and take all such action as may be necessary, or by as any Investor may request, in order to grant, reserve, perfect and protect the Certificate of DesignationOption to Purchase.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing with each Investor are conditioned upon the fulfillment (or waiver by the Company in its sole and absolute discretion) of each of the following events as of the date of the ClosingClosing Date:
5.2.1 the representations and warranties of each such Investor set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.2.2 each such Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents or by the Certificate of DesignationDocuments;
5.2.4 each such Investor shall have executed each of the Transaction Documents Document to which it is a party and shall have delivered the same to the Company; and
5.2.5 each such Investor shall have delivered tendered to the Company the Purchase Price for Preferred Stock the Shares and the Warrants Warrant being purchases purchased by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Securities Purchase Agreement (Deep Well Oil & Gas Inc)
Conditions to Closing. 5.1 Conditions The following shall be conditions precedent to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Date:
5.1.1 (a) This Agreement and the other Transaction Documents shall have become effective in accordance with their respective terms.
(b) All of the terms, covenants, agreements and conditions of this Agreement, the Fee Letter and the other Transaction Documents to be complied with and performed by Bluegreen, the Seller, the Servicer, the Issuer, the Depositor, the Owner Trustee or the Indenture Trustee, as the case may be, by the Closing Date shall have been complied with in all material respects or otherwise waived by the Agent.
(c) Each of the representations and warranties of each of Bluegreen, the Company set forth Seller, the Servicer, the Issuer, the Depositor, the Owner Trustee or the Indenture Trustee, as the case may be, made in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of the time of the Closing Date as though made as of such date as if made on such date time (except that to the extent that they expressly relate to an earlier or later time).
(d) No Funding Termination Event, Event of Default, Servicer Event of Default under any Transaction Document or event that with the giving of notice or lapse of time or both would constitute such representation an amortization event or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company other termination event shall have complied with or performed in all material respects all occurred and be continuing.
(e) The Agent shall have received (and, to the extent requested, made available to each Purchaser):
(i) Certified copies of the agreements, obligations resolutions of the Board of Directors of each of Bluegreen and conditions set forth in the Depositor approving this Agreement and in the other Transaction Documents that are required to which it is a party and any other documents contemplated thereby and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Transaction Documents to which it is a party and any other documents contemplated thereby;
(ii) An officer's certificate of each of Bluegreen, the Depositor and the Owner Trustee, certifying the names and true signatures of the officers authorized to sign this Agreement and the Transaction Documents and any other documents to be complied with delivered by it hereunder or performed by the Company on or before the Closingthereunder;
5.1.3 (iii) A copy of the Closing Date shall occur on a date that is not later than February 10bylaws of each of Bluegreen and the Depositor, 2004certified by an officer thereof;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer (iv) A certified copy of the Companycharter of each of Bluegreen and the Depositor, certifying that a certificate as to the conditions specified in this paragraph 5.1 have been fulfilled as good standing of Bluegreen from the Secretary of State of the Closing, it being understood that such Investor may rely on such State of Massachusetts and a certificate as though it were a representation and warranty to the good standing of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with Depositor from the Secretary of State of the State of Delaware, and shall be in full force and effecteach case dated as of a recent date;
5.1.9 there shall have been no material adverse change (v) Proper financing statements under the UCC of all jurisdictions that the Agent may deem necessary or desirable in order to perfect the ownership and security interests contemplated by the Purchase Agreement, the Sale Agreement, the Indenture and this Agreement;
(vi) Acknowledgment copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Company's consolidated business Trust Estate previously granted by the Seller, the Depositor or financial condition since the date Issuer;
(vii) Completed requests for information, dated on or before the Closing Date, in all jurisdictions referred to in subsection (vi) above that name the Issuer, the Depositor or Bluegreen as debtor, together with copies of such other financing statements;
(viii) A favorable opinion of counsel to Bluegreen, dated the Initial Funding Date, in form and substance satisfactory to the Agent, such opinion to permit reliance by the Purchasers;
(ix) A favorable opinion of counsel to Vacation Trust, Inc., dated the Initial Funding Date, in form and substance satisfactory to the Agent related to corporate, regulatory and insolvency matters, such opinion to permit reliance by the Purchasers;
(x) A favorable written opinion of counsel to the Owner Trustee and special Delaware counsel to the Issuer, dated the Initial Funding Date, in form and substance satisfactory to the Agent, such opinion to permit reliance by the Purchasers;
(xi) A favorable written opinion of counsel to the Issuer, dated the Initial Funding Date, in form and substance satisfactory to the Agent, such opinion to permit reliance by the Purchasers;
(xii) A favorable written opinion of internal counsel for the Indenture Trustee and the Custodian each dated the Initial Funding Date, as to general corporate matters and such other matters with respect to the Indenture Trustee and Custodian as the Agent may reasonably request, such opinion to permit reliance by the Purchasers,
(xiii) A favorable written opinion of internal counsel for the Backup Servicer dated the Initial Funding Date as to general corporate matters and such other matters with respect to the Backup Servicer as the Agent may reasonably request, such opinion to permit reliance by the Purchasers,
(xiv) A favorable written opinion of local counsels for the Seller, dated as of the Company's most recent unaudited financial statements contained Initial Funding Date regarding certain state timeshare and real estate legal matters related to each Initial Approved Opinion Resort and the related Timeshare Loans, in form and substance satisfactory to the Disclosure DocumentsAgent regarding local law matters, such opinion to permit reliance by the Purchasers;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%xv) A copy of the aggregate number of shares of Common Stock issuable upon conversion documentation evidencing the release of all of liens attaching to the Preferred Stock and exercise of all of the Warrants Timeshare Loans pursuant to be issued at the Closing previous financings;
(such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company xvi) Executed copies of each of the following events Transaction Documents; and
(xvii) Such other documents, instruments, certificates and opinions as of the date of Agent may reasonably request including those set forth as the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that closing list delivered to the extent that Seller in connection with this transaction.
(f) No action, suit, proceeding or investigation by or before any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor Governmental Authority shall have complied with been instituted to restrain or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits prohibit the consummation of by the Agent or the Purchasers of, or to invalidate, the transactions contemplated hereby, by the other Transaction Documents this Agreement or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsin any material respect.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Purchaser's Obligations at the Closing. Each ---------------------------------------------------------- Investor----------------------------------------------------- Purchaser's obligations to effect at the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the ClosingShares to be purchased by it hereunder, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Dateevents:
5.1.1 (a) the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date the Closing Date of as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 (b) the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor the Company on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits (c) the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor Company shall have delivered to such Purchaser a certificate, signed by an officer of the Company, certifying that the conditions specified in paragraphs (a) and (b) above have been fulfilled;
(d) the Company shall have delivered to such Purchaser an opinion of counsel for the Purchase Price Company, dated as of the date of the Closing, in the form attached as Exhibit 5.1; ------------
(e) The Company shall have filed the Certificate with the Secretary of State of the State of Delaware and furnished such Purchaser with a file-stamped copy thereof;
(f) the Company shall have executed and delivered the Registration Rights Agreement;
(g) there shall have been no material adverse changes in the Company's consolidated business or financial condition since the date of the Company's most recent financial statements contained in the Disclosure Documents;
(h) the Common Stock shall be designated for quotation and actively traded on the Nasdaq National Market; and
(j) the Company shall have authorized and reserved for issuance upon conversion of the Preferred Shares 175% of the number of shares of Common Stock and issuable upon conversion all of the Warrants being purchases by it Preferred Shares issuable at the Closing by wire transfer of immediately available fundsClosing.
Appears in 1 contract
Samples: Purchase Agreement (White Rock Capital Management Lp)
Conditions to Closing. 5.1 Conditions As conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect execution, authentication and delivery of the Closing, including without limitation its obligation to purchase Notes by the Preferred Stock Indenture Trustee and Warrants at the Closing, are conditioned sale of the Notes by the Trust (by issuance thereof by the Trust upon the fulfillment or waiver Trust's instructions) on the Closing Date, (i) the Trust shall have received by such Investor wire transfer the net proceeds of each sale of the Class A Notes and the Class B Notes in authorized denominations equal in the aggregate to the Initial Class A Note Principal Balance and the Initial Class B Note Principal Balance, and (ii) the Indenture Trustee shall have received the following events as of on or before the Closing Date:
5.1.1 (a) The List of Initial Contracts, certified by the representations and warranties President, any Senior Vice President, any Vice President or any Assistant Vice President of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)Servicer;
5.1.2 the Company shall have complied with or performed in all material respects all (b) Copies of resolutions of the agreementsDepositor approving the execution, obligations delivery and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each performance of the Transaction Documents to which it is a party and delivered the same transactions contemplated hereby and thereby, certified by a Secretary or an Assistant Secretary of the Depositor;
(c) A copy of an officially certified document, dated not more than 30 days prior to the Company; andClosing Date, evidencing the due organization and good standing of the Depositor in the State of Delaware;
5.2.5 each Investor shall have delivered (d) A copy of the Trust Certificate;
(e) Delivery of the executed Financing Statements with respect to the Company Initial Contracts, in accordance with the Purchase Price Filing Requirements, prepared for Preferred Stock filing;
(f) A certificate listing the Servicing Officers as of the Closing Date;
(g) Executed copies of the Transaction Documents executed on or prior to the Closing Date;
(h) Copies of resolutions of the Board of Directors of SierxxXxxxxx.xxx xxxroving the execution, delivery and performance of this Indenture and the Warrants being purchases other Transaction Documents to which it is a party and the transactions contemplated hereby and thereby, certified by it at a Secretary or an Assistant Secretary of SierxxXxxxxx.xxx;
(i) A copy of an officially certified document, dated not more than 30 days prior to the Closing by wire transfer Date, evidencing the due organization and good standing of immediately available funds.SierxxXxxxxx.xxx xx the State of Delaware and the good standing of SierxxXxxxxx.xxx xx the State of Texas;
(j) A custody receipt, substantially in the form of Exhibit A hereto, pursuant to which the Indenture Trustee certifies that it has received a contract file with respect to each Initial Contract on the List of Initial Contracts;
(k) All Necessary Consents;
(l) A letter from Moodx'x xxxt it has assigned a rating of (i) "Aaa" to the Class A-1 Notes, (ii) "Aaa" to the Class A-2 Notes and (iii) "Aa3" to the Class B Notes;
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Xxxxxxxx'x Obligations at the Closing. Each ---------------------------------------------------------- Investor's Xxxxxxxx'x ----------------------------------------------- obligations to effect at the Closing, including without limitation its obligation to purchase exchange the Series B Preferred Stock and Warrants at for the ClosingSeries B-2 Preferred Stock, are conditioned upon the fulfillment satisfaction by the Company (or waiver by such Investor Xxxxxxxx) of each of the following events as of the Closing Exchange Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Exchange Date shall occur on a date that is not later than February 10September 30, 20042000;
5.1.4 the Company shall have delivered to such Investor Xxxxxxxx a certificate, signed by the Chief Executive Officer and Chief Financial Officer an officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor Xxxxxxxx may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor Xxxxxxxx an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto, and covering such additional matters as may reasonably be requested by Xxxxxxxx;
5.1.6 the Company shall have delivered to Xxxxxxxx duly executed certificates representing the Series B-2 Preferred Stock and the Warrants being purchased by such Investorexchanged;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Common Stock shall be listed for trading on the Nasdaq National Market and no suspension of trading in the Common Stock on such market shall have occurred and be continuing as of the Exchange Date;
5.1.9 the Company shall have delivered evidence reasonably satisfactory authorized and reserved for issuance the number of shares of Common Stock required to the Investors confirming that the Certificate of Designation be reserved under paragraph 4.5 hereof, and shall have been duly authorized and adopted by all requisite corporate action, provided Xxxxxxxx with reasonable evidence thereof;
5.1.10 the Company shall have been duly filed the Series B-2 Articles of Amendment with the Secretary of State of the State of Delaware, Colorado and shall be in full force and effect;
5.1.9 there a copy thereof certified by the Secretary of State of the State of Colorado shall have been no delivered to Xxxxxxxx and the Series B-2 Articles of Amendment shall not have been amended, modified or rescinded; and
5.1.11 since the date of this Agreement, there shall not have occurred, in the reasonable judgment of Xxxxxxxx, a material adverse change in the Company's consolidated business business, operations, financial condition, properties, prospects or financial condition since the date results of operation of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Stock Exchange Agreement (Webb Interactive Services Inc)
Conditions to Closing. 5.1 Conditions to Investors' Marshall's Obligations at the Closing. Each ---------------------------------------------------------- InvestorMarshall's ----------------------------------------------- obligations to effect at the Closing, including without limitation its obligation to purchase exchange the Series B Preferred Stock and Warrants at for the ClosingSeries B-2 Preferred Stock, are conditioned upon the fulfillment satisfaction by the Company (or waiver by such Investor Xxxxxxxx) of each of the following events as of the Closing Exchange Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Exchange Date shall occur on a date that is not later than February 10September 29, 20042000;
5.1.4 the Company shall have delivered to such Investor Xxxxxxxx a certificate, signed by the Chief Executive Officer and Chief Financial Officer an officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor Xxxxxxxx may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor Xxxxxxxx an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto, and covering such additional matters as may reasonably be requested by Xxxxxxxx;
5.1.6 the Company shall have delivered to Xxxxxxxx duly executed certificates representing the Series B-2 Preferred Stock and the Warrants being purchased by such Investorexchanged;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Common Stock shall be listed for trading on the Nasdaq National Market and no suspension of trading in the Common Stock on such market shall have occurred and be continuing as of the Exchange Date;
5.1.9 the Company shall have delivered evidence reasonably satisfactory authorized and reserved for issuance the number of shares of Common Stock required to the Investors confirming that the Certificate of Designation be reserved under paragraph 4.5 hereof, and shall have been duly authorized and adopted by all requisite corporate action, provided Xxxxxxxx with reasonable evidence thereof;
5.1.10 the Company shall have been duly filed the Series B-2 Articles of Amendment with the Secretary of State of the State of DelawareColorado, and shall be in full force provided Xxxxxxxx with reasonable evidence of such filing and effect;the effectiveness thereof; and
5.1.9 5.1.11 since the date of this Agreement, there shall not have been no occurred, in the reasonable judgment of Xxxxxxxx, a material adverse change in the Company's consolidated business business, operations, financial condition, properties, prospects or financial condition since the date results of operation of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The obligation of Allied to Investors' Obligations at enter into this Agreement and to perform its obligations hereunder is subject to the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each satisfaction of the following events as of conditions on or prior to the Closing Date:
5.1.1 the (a) The representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents Article IV hereof ---------- shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty date of the Transaction.
(b) The Company made herein;
5.1.5 and each of the Company Guarantors shall be in compliance with all the terms and provisions set forth herein and in each other Investment Document on its part to be observed or performed, and at the time of and immediately after the Transaction, no Event of Default or Default shall have delivered to such Investor an occurred and be continuing.
(c) Allied shall have received the following items:
(i) a favorable written opinion of counsel for the CompanyCompany and the Guarantors (A) dated the Closing Date, dated (B) addressed to Allied, and (C) covering such matters relating to the Investment Documents and the Transaction as Allied shall reasonably request, and the Company hereby requests such counsel to deliver such opinion;
(ii) the Debenture, duly executed by the Company and each of the other Investment Documents, executed by each of the parties thereto (other than Allied);
(A) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Company and each Guarantor, certified as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased a recent date by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State state of Delawareits organization, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in a certificate as to the Company's consolidated business or financial condition since the date good standing of the Company's most Company and each Guarantor as of a recent unaudited financial statements contained in date, from such Secretary of State; (B) a certificate of the Disclosure Documents;
5.1.10 Secretary or Assistant Secretary of the Company shall have authorized and reserved for issuance at least one hundred each Guarantor dated the Closing Date and fifty percent certifying (150%1) that attached thereto is a true and complete copy of the aggregate number of shares of Common Stock issuable upon conversion of all by-laws of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price Company as in effect on the Closing Date and without regard at all times since a date prior to any restriction the date of the resolutions described in clause (2) below, (2) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of the Company and each Guarantor authorizing the execution, delivery and performance of the Investment Documents to which such Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (3) that the certificate or articles of incorporation of the Company and each Guarantor have not been amended since the date of the last amendment thereto shown on the ability certificate of an Investor good standing furnished pursuant to convert Preferred Stock clause (A) above, and (4) as to the incumbency and specimen signature of each officer executing any Investment Document or exercise any other document delivered in connection herewith on behalf of the Warrants Company and each Guarantor; (C) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificates pursuant to (B) above; and (D) such date)other documents as Allied may reasonably request;
(iv) all amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder or under any other Investment Document;
(v) the Warrants;
(vi) the Audited Financials and Interim Financials, as described in Section 4.6; ------- ---
(vii) the employment contracts, as described in Section 4.24; ------------ and
5.1.11 there shall be no injunction(viii) the Registration Rights Agreement, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in form and substance acceptable to the parties.
(d) After giving effect that restrains or prohibits the consummation of to the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company shall have outstanding no Indebtedness other than (A) the Senior Debt, (B) the extension of credit under this Agreement and (C) the Indebtedness listed on Schedule 4.7 or as disclosed in the Financials. ------------
(e) Allied shall have received fully executed conformed copies of the Acquisition Agreement and each of the following events as other documents related to the Acquisition Agreement. On the Closing Date, the Acquisition shall have been consummated in accordance with the terms of the date Acquisition Agreement.
(f) The closing of the Closing:Senior Debt shall have occurred.
5.2.1 (g) All legal matters incident to this Agreement, the representations Debentures and warranties of each Investor the other Investment Documents shall be true and correct in all material respects as of such date as if made on such date satisfactory to Allied.
(except h) No event that to the extent that any such representation or warranty relates to has a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor Material Adverse Effect shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;occurred.
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor (i) Allied shall have executed each of the Transaction Documents to which it is a party received such other documents, instruments and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsinformation as Allied may reasonably request.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The Closing is subject to Investors' Obligations the satisfaction or waiver by the party to be benefited thereby of the following conditions:
(a) The Parent and the Company shall have delivered or caused to be delivered to the Purchaser the following:
(i) this Agreement duly executed by the Parent and the Company;
(ii) evidence of the transfer of 404,350 shares of Preferred Stock to the Purchaser’s account at the Closing. Each ---------------------------------------------------------- Investor's obligations Depository Trust Company; and
(iii) a legal opinion of Company Counsel, in the form of Exhibit B attached hereto, addressed to the Purchaser;
(iv) the Prospectus Supplement, a copy of which shall have been filed by the Parent with the Commission on or prior to the Closing Date;
(v) a certificate dated the Closing Date, executed by an officer of the Parent satisfactory to the Purchaser, to the effect that the conditions set forth in subsections (c) and (d) of this Section 3.3 have been satisfied; and
(vi) a certificate dated the Closing Date, executed by the Secretary of each entity, to the effect that (A) the Certificate of Incorporation and By-laws of each entity shall have not been amended since the date upon which certified copies of each had been delivered to Purchaser and remain in full force and effect and (B) the officer executing this Agreement on behalf of each entity is duly elected and hold the office set forth therein, with copies of resolutions approved by the Board of Directors of each entity attached as an exhibit thereto.
(b) At the Closing, including without limitation its obligation the Purchaser shall have delivered or caused to purchase be delivered to the Parent and the Company the following:
(i) this Agreement duly executed by the Purchaser;
(ii) the Preferred Stock and Warrants at Consideration; and
(iii) the ClosingPurchaser’s Subscription Securities, are conditioned upon evidenced by delivery to the fulfillment Company of a certificate or waiver by such Investor certificates evidencing the Purchaser’s interest in units of each of the following events as of the Closing Date:USRP/HCI Partnership 1, L.P.
5.1.1 the (c) All representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents party contained herein shall be remain true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate applicable Closing Date.
(d) There shall have been no Material Adverse Effect (as though it were a representation defined in Section 3.1(b)) with respect to the Parent and warranty of the Company made herein;from June 30, 2003 through the date hereof.
5.1.5 (e) From the Company shall have delivered date hereof to such Investor an opinion of counsel for the CompanyClosing Date, dated as of such date, trading in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing Common Stock or the Preferred Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Parent, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities, nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Purchaser, makes it impracticable or inadvisable to purchase the shares of Preferred Stock at the Closing.
(f) The Parent shall have entered into a credit agreement (“Credit Agreement”) with Bank of America, N.A., as agent (the “Agent”), and other lenders parties thereto (collectively, the “Lenders”) in accordance with the terms of that certain commitment letter dated October 2, 2003 (the “Commitment Letter”) between the Company and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed Lenders and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory that certain summary of terms and conditions attached to the Investors confirming that Commitment Letter. On the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate actionClosing Date, shall have been duly filed with the Secretary of State of the State of Delaware, and Credit Agreement shall be in full force and effect;
5.1.9 there . The Credit Agreement shall have been no material adverse change in provide for an aggregate of not less than $50,000,000 of revolving credit commitments (of which not less than $20,000,000 shall remain undrawn both before and after giving effect to the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants transactions contemplated to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect occur on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such dateDate); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect On the Closing are conditioned upon Date, the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor Parent shall be true and correct in all material respects as of such date as if made on such date (except that have issued a term loan note to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true Agent in an amount of not less than $35,000,000 under the Credit Agreement and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by paid via wire transfer of immediately available fundsfunds to the Agent the sum of $500,000 (the “Subscription Fee”) in consideration for advisory services associated with transactions contemplated under the Credit Agreement and this Agreement. All of the terms and conditions of the Credit Agreement and other documents related thereto shall be satisfactory to the Purchaser.
(g) On or before the Closing Date, the Parent shall have prepared and filed with the Principal Market an additional shares listing application covering (A) at least 404,350 shares of Preferred Stock and (B) a number of shares of the Common Stock at least equal to the Actual Minimum on the date of such application.
Appears in 1 contract
Samples: Securities Purchase Agreement (U S Restaurant Properties Inc)
Conditions to Closing. 5.1 Conditions The obligation of the Lenders to Investors' Obligations at make any Advance in respect of any Loan hereunder, or to issue any Letter of Credit hereunder, is subject to the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each satisfaction of the following events as of conditions on the Closing Date:Date (which shall not be later than June 9, 1997):
5.1.1 the (a) The representations and warranties of the Company set forth in this Agreement and in the other Transaction Security Documents shall be true and correct on and as of the date hereof and shall be true and correct in all material respects as of such the date each Advance is made or Letter of Credit issued, as if made on such date (except that applicable, and the Borrowers shall have performed all obligations which were to have been performed by them hereunder prior to the extent that any such representation date the Advance is made or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as Letter of that particular date);Credit issued.
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company (b) The Borrowers shall have executed and delivered to the Registration Rights Agreement;
5.1.8 the Company Agent (or shall have caused to be executed and delivered evidence reasonably to the Agent by the appropriate Persons) the following (each of which shall be in form and substance satisfactory to the Investors confirming that Managing Agents):
(i) The Notes;
(ii) The Security Documents, together with any other documents required or contemplated by the Certificate terms thereof;
(iii) Certified copies of Designation shall have been duly authorized resolutions of the Board of Directors and adopted Stockholders of each Borrower and Guarantor, with incumbency certificate, authorizing the execution and delivery of this Agreement, the Notes and the Security Documents, as applicable;
(iv) A copy of the corporate charter or articles of incorporation, certified by all requisite corporate action, shall have been duly filed with the Secretary of State of the State state of Delawareorganization, of each Borrower and shall be in full force and effectGuarantor;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date (v) A certified copy of the Company's most recent unaudited financial statements contained by-laws of each Borrower and Guarantor;
(vi) Certificates of good standing (both as to corporation law and tax matters) issued by the state in which each Borrower and Guarantor is organized and any other state in which it is authorized, qualified or required to be qualified to transact business;
(vii) True and correct copies of all material consents, contracts, licenses, instruments and other documents specified in SCHEDULES 4.04, 4.13, 4.14 and 4.15;
(viii) Certificates of insurance evidencing the Disclosure Life Insurance and evidencing all other insurance coverage and policy provisions required in this Agreement and the Security Documents;
5.1.10 (ix) A pay-off letter, UCC termination statements and mortgage and lien releases from all lenders and creditors who are being paid with the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) proceeds of the aggregate number of shares of Common Stock issuable upon conversion of Loans;
(x) The Financial Consulting Agreement between SCMC, SFX Broadcasting and the Parent, the Employment Agreement between the Parent and Xxxxxx Xxxxx, all joint sales agreements, local marketing agreements and similar agreements to which the Parent or any Borrower is a party, and such other agreements as the Lenders shall require;
(xi) A certified and complete copy of the Preferred Stock TBLR Asset Sale Agreement, and exercise copies of, or other satisfactory evidence of, the regulatory filings required to be made thereunder with the FCC, the Department of all Justice and the Federal Trade Commission;
(xii) A certified and complete copy of the Warrants TBO Asset Purchase Agreement, all instruments of transfer pursuant thereto and all opinions of American Radio's counsel to be issued at TBO (each of which opinions shall authorize reliance thereon by the Closing Agent and the Lender);
(such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation xiii) A certificate of the transactions contemplated herebyBorrowers confirming that, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 Advance (or issuance of the Letter of Credit), all representations and warranties contained in the Loan Documents are true, accurate and complete, and no Event of Default or Unmatured Event of Default exists; and
(xiv) Such other supporting documents and certificates as the Lenders may reasonably request, including, without limitation, current financial statements of each Investor Borrower and Guarantor, engineering reports, appraisals and environmental and Hazardous Material assessments, reports and questionnaires as the Lenders may reasonably request.
(c) The Borrowers shall have paid the Commitment Fee and the initial Administration Fee to the Lenders.
(d) The Lenders and the Agent shall have received the favorable written opinions of general counsel for the Borrowers, the Guarantors and the Parent and FCC counsel for the Borrowers and the Parent dated as of the Closing Date, satisfactory to the Lenders and the Agent in scope and substance.
(e) The Lenders and the Agent shall have received current financial statements of the Parent, the Borrowers and the Guarantors in form and substance acceptable to the Lenders, and such financial statements shall confirm, inter alia, that the Borrowers' combined Adjusted Broadcast Cash Flow for the most recent twelve (12) month period is not less than $10,000,000.00.
(f) The Lenders and the Agent shall have received (i) engineering environmental reports on the Stations in form and substance acceptable to the Lenders and the Agent, and (ii) environmental questionnaires and other evidence satisfactory to the Lenders and the Agent confirming the absence of any Hazardous Material on the Premises.
(g) The Agent shall have received written evidence reasonably satisfactory to the Agent and its counsel that, except as otherwise disclosed in SCHEDULE 4.21, all Leases covering tower and transmitter sites used by the Stations have lease terms (including all extension and renewal options exerciseable unilaterally by the Borrowers) through April 1, 2007.
(h) The transactions contemplated by the TBO Asset Purchase Agreement shall have been consummated (except for the payment of that portion of the purchase price thereunder being paid with the proceeds of Advances) substantially in accordance with the terms thereof and, in any event, in a manner reasonably satisfactory to the Agent, including, without limitation, (i) the repayment in full in cash (simultaneously with, and from the proceeds of, Advances or otherwise) of all Indebtedness of American Radio related to the assets and properties transferred under such agreement which is not being assumed by TBO, (ii) the valid assumption by TBO of all other liabilities of American Radio in respect of such assets and properties, (iii) the consent to such transaction by the FCC pursuant to a Final Order, and (iv) the execution and delivery of the Reversal Agreement in form and substance acceptable to the Agent.
(i) All legal matters incident to the transactions hereby contemplated shall be true and correct in all material respects as satisfactory to special counsel for the Lenders.
(j) Neither an Event of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as Default nor an Unmatured Event of that particular date);
5.2.2 each Investor Default shall have complied with or performed occurred and be continuing.
(k) The Borrowers and the Parent shall have not less than $2,000,000 of working capital in the form of unrestricted available cash on hand in the form of collected funds in unrestricted and available demand deposit accounts, free and clear of all security interests, liens and encumbrances except security interests in favor of the agreements, obligations Lenders and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;Agent.
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor (l) Each Borrower shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company Lender(s) at least three (3) Business Days prior to the Purchase Price date of the requested Advance (or such longer period as required by SECTION 2.01), a Request for Preferred Stock and Advance in the Warrants being purchases by it at form of EXHIBIT G hereto.
(m) The ratio of the Closing by wire transfer Borrowers' Total Debt (exclusive, however, of immediately available fundsthe Tranche C Loans) to the Borrowers' combined Adjusted Broadcast Cash Flow (exclusive of TBLR's Broadcast Cash Flow) for the most recent twelve (12) month period is less than 6.0:1.0.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its The obligation of AIFS to purchase and pay for the Preferred Stock Class C Certificates pursuant to this Agreement are subject to the accuracy of and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Date:
5.1.1 compliance with the representations and warranties of the Company contained herein as of the date hereof and the Closing Date, to the accuracy of the statements of the officers of the Company made in any certificate furnished pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder and to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading in the rating accorded the Class C Certificates by Xxxxx'x Investor Service or Standard & Poor's Ratings Service set forth in the Offering Memorandum other than a downgrade caused by a downgrade in the rating of the Company.
(i) Each of the representations and warranties of the Company contained herein shall be true and correct as of the Closing Date (except to the extent that a representation or warranty expressly relates to an earlier or later date, in which case it will be true and correct as of such date); (ii) each of the conditions precedent set forth in Section 6 of that certain Letter Agreement, dated as of October 31, 1997, as amended, (the "Letter Agreement") among AVSA, S.A.R.L. ("AVSA"), the Company and US Airways Group, Inc. ("Group") shall have been satisfied; (iii) no Termination Event as described in Section 7 of the Letter Agreement shall have occurred; and (iv) the Company shall have performed in all material respects all of its obligations to be performed hereunder on or prior to the Closing Date; provided that the condition set forth in Section 6(b) of the Letter Agreement shall be deemed satisfied if the Company delivers to the Indenture Trustee an opinion with respect to Section 1110 of the U.S. Bankruptcy Code meeting the requirements described in the section of the Offering Memorandum captioned "Description of Equipment Notes-Remedies"; and AIFS shall have received on the Closing Date a certificate, dated the Closing Date and signed by a Vice President or Treasurer of the Company, to the effect that each of the foregoing clauses (i) through (iv) is true as of the Closing Date. The officer signing and delivering such certificate may rely on the best of his or her knowledge.
(c) AIFS shall have received on the Closing Date an opinion, dated the Closing Date, from the General Counsel, Deputy General Counsel or Associate General Counsel of the Company, in form satisfactory to AIFS and AIFS' counsel, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has all necessary corporate power and authority under such laws to own its properties, to conduct its business as described in the Offering Memorandum, to enter into this Agreement and each of the Operative Documents to which it is a party and to perform its obligations hereunder and thereunder (except where the failure to have such power or authority would not have a material adverse effect on the Company); and the Company is duly qualified to transact business as a foreign corporation in good standing in each jurisdiction in which its ownership of property or the conduct of its business requires such qualification (except where the failure to so qualify would not have a material adverse effect upon the Company);
(ii) The Company is an "air carrier" and a "citizen of the United States" within the meaning of the Transportation Code, and holds an air carrier operating certificate issued pursuant to chapter 447 of Title 49 of the United States Code; the descriptions in the Offering Memorandum with respect to statutes, contracts, administrative orders and regulations and legal and governmental proceedings are accurate and fairly summarize the information that would be required to be shown (if the Offering Memorandum were subject to the Securities Act of 1933, as amended (the "1933 Act")); and there are, to the best of our counsel's knowledge, no statutes, administrative orders or regulations or pending or threatened legal or governmental proceedings which would be required to be described in the Offering Memorandum (if the Offering Memorandum were subject to the 0000 Xxx) which are not described as required, nor any contracts or documents of a character that would be required to be described or referred to in the Offering Memorandum (if the Offering Memorandum were subject to the 1933 Act), that are not so described, referred to or filed as would be so required;
(iii) The statements in the Offering Memorandum as to the routes that the Company presently operate or is authorized to operate are correct in all material respects. Except as disclosed in the Offering Memorandum, no action or proceeding has been instituted or to such counsel's knowledge, has been threatened by the United States Department of Transportation, the Federal Aviation Administration or the aeronautical authorities of any other Transaction country that would impair the Company's ability to operate such routes;
(iv) This Agreement has been duly authorized, executed and delivered by the Company;
(v) No authorization, approval, consent, license, order of, or registration with, or the giving of notice to, any government, governmental instrumentality, or court, domestic or foreign, or other regulatory body or authority (other than, in the case of the Class C Certificates, with respect to the qualification of the Basic Agreement under the 1939 Act and other than, in the case of the Class C Certificates, with respect to the securities or Blue Sky laws of the various states and with respect to any registration, filing or recording that may be required under the Transportation Code and the Uniform Commercial Code as in effect in various jurisdictions) is required to be obtained or made by the Company for the valid authorization, issuance, sale and delivery of the Class C Certificates and the Equipment Notes relating thereto or for the valid authorization, execution, delivery and performance by the Company of this Agreement and each of the Operative Documents to which the Company is or will be a party or the consummation of the transactions contemplated by this Agreement and such Operative Documents;
(vi) The execution and delivery by the Company of this Agreement and the Operative Documents to which the Company is or will be a party, the issuance and sale of the Class C Certificates and the related Equipment Notes, the issuance of the Escrow Receipts attached to the Class C Certificates, the consummation by the Company of the transactions contemplated herein and therein and in the Offering Memorandum and compliance with the terms hereof and thereof do not and will not result in any violation of the charter or by-laws of the Company and do not and will not conflict with or violate, or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any impermissible lien, charge or encumbrance upon any property or assets of the Company under (A) any indenture, mortgage or loan agreement, or any other agreement or instrument known to such counsel, to which the Company is a party or by which either it be bound or to which any of its properties may be subject (except for such conflicts, breaches, defaults, violations, liens, charges or encumbrances that, individually or in the aggregate, would not have a material adverse effect on the financial condition or on the earnings or business affairs of the Company and its subsidiaries considered as a single entity); (B) any existing applicable law, rule or regulation (other than the securities or Blue Sky laws of the various states, as to which such counsel need express no opinion); or (C) any judgment, order or decree known to such counsel of any government, governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its properties;
(vii) No default exists in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, loan agreement, note, lease or other agreement or instrument that is described or referred to in the Offering Memorandum or filed as an exhibit to the Registration Statement on Form S-3 (File No. 333-47348) filed by the Company with the Securities and Exchange Commission (the "Registration Statement");
(viii) Except as disclosed in the Offering Memorandum, there is no action, suit or proceeding before or by any government, governmental instrumentality or court, domestic or foreign, now pending or, to the knowledge of such counsel, threatened against or affecting the Company that might reasonably be expected to result in any material adverse change in the financial condition or in the earnings or business affairs of the Company, or that could adversely affect the consummation of the transactions contemplated by this Agreement or any of the other Operative Documents to which the Company is or will be a party; and
(ix) Such counsel has participated in the preparation of the Offering Memorandum and the documents incorporated by reference in the Offering Memorandum and such counsel has no reason to believe that the Offering Memorandum or any amendment or supplement thereto (except for the financial statements and other financial or statistical data included or incorporated by reference therein or omitted therefrom, and except for the Statement of Eligibility on Form T-1 of the Trustee as to which such counsel need express no opinion), at the time the Offering Memorandum was issued, at the time any amended or supplemental Offering Memorandum was issued or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date an opinion, dated the Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit A hereto.
(e) You shall have received on the Closing Date an opinion of Xxxxxxx Xxxx, LLP, counsel for State Street Bank and Trust Company of Connecticut, National Association, individually and as Trustee, Subordination Agent and Paying Agent, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit B hereto.
(f) You shall have received on the Closing Date an opinion of Ray, Xxxxxxx & Xxxxxxx, counsel for the Escrow Agent, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit C hereto.
(g) You shall have received an the Closing Date an opinion of Shearman & Sterling, counsel for the Liquidity Provider, dated the Closing Date, in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit D hereto.
(h) You shall have received on the Closing Date an opinion of Vedder, Price, Xxxxxxx & Kammholz, counsel for the Depositary for the Class C Trust, dated the Closing Date, and an opinion of in-house counsel to the Depositary, dated the Closing Date, each in form and substance reasonably satisfactory to you and substantially to the effect set forth in Exhibit E hereto.
(i) Each of the Appraisers shall have furnished to AIFS a letter from such Appraiser, addressed to the Company and dated the Closing Date, confirming that such Appraiser and each of its directors and officers (i) is not an affiliate of the Company or any of its affiliates; (ii) does not have any substantial interest, direct or indirect, in the Company or any of its affiliates; and (iii) is not connected with the Company or any of its affiliates as an officer, employee, promoter, underwriter, trustee, partner, director or person performing similar functions.
(j) At the Closing Date, each of the Operative Documents (other than the Indentures, Leases and Participation Agreements) shall be duly executed and delivered by each of the parties thereto; the representations and warranties of the Company contained in each of such executed Operative Documents shall be true and correct in all material respects as of such date as if made on such date the Closing Date (except that to the extent that any such representation they relate solely to an earlier or warranty relates to a particular later date, such representation or warranty in which case they shall be true and correct in all respects as of that particular such earlier or later date);
5.1.2 the Company ) and you shall have complied with or performed in all material respects all received a certificate of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with President or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer Vice President of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, to such date, effect.
(k) [Reserved.]
(l) The Class G Certificates (with attached Escrow Receipts) in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 amount and containing the Company terms described in the Offering Memorandum shall have delivered duly executed certificates representing the Preferred Stock be concurrently issued and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationUnderwriters.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Purchase Agreement (Us Airways Inc)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock Shares and Warrants at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonably efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of the Closing Date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in the Certificate of Designation, this Agreement or the other Transaction Documents that are required to be complied with or performed by the Company on or before such date;
5.1.3 the Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware, and delivered to such Investor written evidence of the acceptance of such filing;
5.1.4 the Closing Date shall occur not later than May 6, 2005;
5.1.5 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled (or waived in writing by such Investor) as of the Closing Date, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.6 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.7 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of the Closing Date, in form and substance reasonably satisfactory to such Investor;
5.1.8 the Company shall have delivered to such Investor duly executed Warrants and certificates representing the Preferred Shares being purchased by such Investor at the Closing;
5.1.9 the Company shall have executed and delivered to such Investor the Registration Rights Agreement;
5.1.10 the Company shall have obtained the written agreement of each Key Person (A) to refrain from selling shares of Common Stock prior to first to occur of (x) the Effective Date and (y) the first date upon which the Securities are eligible for resale to the public by the Investors without restriction under Rule 144, (B) while employed by the Company, to devote substantially all of his business time and attention to the business of the Company and its Subsidiaries and (C) while employed by the Company and during the one-year period immediately following the termination of such employment, to refrain from directly or indirectly engaging in any business activity (as an employee, director, officer, partner, investor (other than as a holder of not more than 4.99% of the common stock of an entity that is subject to the reporting requirements of the Exchange Act) or consultant, or in any other capacity) that is in competition with any of the respective businesses of the Company or its Subsidiaries;
5.1.11 there shall have occurred no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent audited financial statements attached as Schedule 3.4 hereto (except as described on Schedule 3.8.1 hereto);
5.1.12 the Common Stock shall be quoted on the Nasdaq OTC Bulletin Board or the Nasdaq SmallCap Market;
5.1.13 the Company shall have authorized and reserved for issuance not less than the sum of (A) one hundred percent (100%) of the number of Conversion Shares issuable upon conversion of all of the Preferred Shares issuable at the Closing based on an assumed Conversion Price of $1.00, plus (B) one hundred and twenty five percent (125%) of the number of Warrant Shares issuable upon exercise of all of the Warrants issuable at the Closing, in each case without regard to any limitation on such conversion or exercise that may otherwise exist;
5.1.14 a majority of the stockholders of the Company, acting by written consent in accordance with the Delaware General Corporation Law, shall have approved the transactions contemplated hereby, by the Certificate and by the other Transaction Documents and the issuance of Common Stock in excess of the Cap Amount, and the Company shall have provided such Investor with reasonable evidence thereof; and
5.1.15 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby or by the other Transaction Documents.
5.2 Conditions to Company's Obligations at the Closing. The Company's obligations to effect the Closing with each Investor are conditioned upon the fulfillment (or waiver by the Company in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 5.2.1 the representations and warranties of the Company such Investor set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company 5.2.2 such Investor shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the ClosingClosing Date;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby or by the other Transaction Documents or by the Certificate of DesignationDocuments;
5.2.4 each such Investor shall have executed each of the Transaction Documents Document to which it is a party and shall have delivered the same to the Company; and
5.2.5 each such Investor shall have delivered tendered to the Company the Purchase Price for the Preferred Stock Shares and the Warrants being purchases purchased by it at the Closing by wire transfer of immediately available fundsClosing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Tag Entertainment Corp)
Conditions to Closing. 5.1 Conditions As conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closingexecution, including without limitation its obligation to purchase the Preferred Stock authentication and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each delivery of the Certificates by the Trustee on the Closing Date, the Trustee shall have received a certificate of the Depositor (and the Trustee shall not be responsible for any independent verification of such certificate) to the effect that the following events as of have been delivered on or before the Closing Date:
5.1.1 the representations and warranties (a) The List of Contracts certified by a duly authorized officer of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)Originator;
5.1.2 the Company shall have complied with or performed in all material respects all (b) Copies of resolutions of the agreementsBoard of Directors of the Originator and the Transferor approving the execution, obligations delivery and conditions set forth in this Agreement and in performance of the other Transaction Related Documents that are required to be complied with which each is a party, certified by a Secretary or performed an Assistant Secretary of the Originator or the Transferor, as appropriate.
(c) A copy of a document, certified by the Company on or before Secretary of State of the Closing;
5.1.3 State of ________, and dated not more than 30 days prior to the Closing Date shall occur (and confirmed on a date that is not later than February 10the Business Day prior to the Closing Date by telegram, 2004telephone or other similar means), evidencing the due organization and good standing of the Originator and the Transferor, as appropriate;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer (d) Copies of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized Incorporation and adopted By-Laws of the Originator and the Transferor certified as true, correct, complete by all requisite corporate actionthe Secretary of the Originator or the Transferor, shall have been duly filed as appropriate;
(e) Evidence of filing with the Secretary of State of the State of Delaware___________ of UCC-1 financing statements (i) executed by the Originator, as debtor, and shall be in full force naming the Transferor as secured party (and effectthe Trustee as assignee thereof) and the Conveyed Property as collateral; (2) executed by the Transferor, as debtor, and naming the Depositor as secured party (and the Trustee as assignee thereof) and the Conveyed Property as collateral; and (3) executed by the Depositor, as debtor and naming the Trustee as secured party and the Conveyed Property as collateral;
5.1.9 there shall have been no material adverse change in (f) A certificate listing the Company's consolidated business or financial condition since the date Servicing Officers of the Company's most recent unaudited financial statements contained in Servicer as of the Disclosure DocumentsClosing Date;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%g) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company Executed copies of each of the following events as Related Documents;
(h) Copies of resolutions of the date Board of Directors of the Closing:
5.2.1 Depositor approving the representations execution, delivery and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all performance of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Related Documents to which it is a party and delivered the same transactions contemplated thereby, certified by a Secretary or an Assistant Secretary of the Depositor;
(i) A copy of an officially certified document, dated not more than 30 days prior to the CompanyClosing Date and confirmed on the Business Day prior to the Closing Date by telegram, telephone or other similar means, evidencing the due organization and good standing of the Depositor;
(j) Copies of the Certificate of Incorporation and By-Laws of the Depositor, certified by a Secretary or an Assistant Secretary of the Depositor; and
5.2.5 each Investor shall (k) Evidence that all collections received on the Contracts from the close of business on the Cut-Off Date through ______________ have delivered to been deposited in the Company Collection Account, and of the Purchase Price for Preferred Stock deposit of $____________ in the Capitalized Interest Account, $__________ in any Reserve Account and $__________ in the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsPre-Funding Account.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Investor's Obligations at the ClosingClosing . Each ---------------------------------------------------------- The Investor's obligations to effect the Closing, including including, without limitation limitation, its obligation to purchase the Preferred Stock Shares and Warrants Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such the Investor in its sole and absolute discretion) of each of the following events as of the Closing Date:
5.1.1 , and the Company shall use its commercially reasonable efforts to cause each of such conditions to be satisfied: the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 ; the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 ; the Company shall have delivered to such the Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 Sections 5.1(a), (b), (h), (i), (k) and (l) have been fulfilled as of the Closing, it being understood that such the Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 ; the Company shall have delivered to such the Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock Shares and the Warrants Warrant being purchased by such the Investor;
5.1.7 ; the Company shall have executed and delivered to the Investor the Registration Rights Agreement;
5.1.8 ; the Company shall have executed and delivered to the Investor the Business Collaboration Agreement and the Business Collaboration Agreement shall be effective and shall not be terminated; the Company shall have delivered evidence reasonably satisfactory to the Investors confirming Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and bylaws of the Company, and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and that such resolutions have not been amended or superseded, it being understood that the Certificate Investor may rely on such certificate as a representation and warranty of Designation the Company made herein; the Company shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with reserved for issuance the Secretary aggregate number of State shares of Common Stock issuable upon exercise of the State of Delaware, and Warrant to be issued at the Closing (such number to be determined without regard to any restriction on such exercise); there shall be no injunction, restraining order or decree of any nature of any court or Governmental Authority of competent jurisdiction that is in full force effect that restrains or prohibits the consummation of the transactions contemplated hereby and effect;
5.1.9 by the other Transaction Documents; the Closing Date shall occur on a date that is not later than July 3, 2009; there shall have been occurred no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 ; and the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to shall be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect listed on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Nasdaq Global Market. Conditions to Company's Obligations at the ClosingClosing . The Company's ---------------------------------------------------- obligations to effect the Closing with the Investor are conditioned upon the fulfillment (or waiver by the Company in its sole and absolute discretion) of each of the following events as of the date of the Closing:
5.2.1 Closing Date: the representations and warranties of each the Investor set forth in this Agreement and in the other Transaction Documents to which it is a party shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each ; the Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such the Investor on or before the Closing;
5.2.3 ; there shall be no injunction, restraining order or decree of any nature of any court or Government Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents or by Documents; the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents Document to which it is a party and shall have delivered the same to the Company; and
5.2.5 each and the Investor shall have delivered tendered to the Company the Purchase Price for Preferred Stock the Shares and the Warrants Warrant being purchases purchased by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of On the Closing Date:
5.1.1 , as a condition precedent to the Buyer's obligations hereunder, all of the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents Seller made herein shall be true and correct correct, the Seller shall not be in breach of any of the agreements made herein, and the Seller shall deliver to the Buyer the following documents and instruments, all material respects of which shall be in form and substance acceptable to the Buyer:
(a) A copy of the resolutions of the Board of Directors of the Seller, certified as of such date as if made on such date June 10, 1999 by its secretary or assistant secretary authorizing the execution, delivery and performance of this Agreement by the Seller and approving the transactions contemplated hereby;
(except that to b) The Certificate of Incorporation of the extent that any such representation or warranty relates to a particular dateSeller, such representation or warranty shall be true and correct in all respects certified as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 a date reasonably near the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State or other similar official of the Seller's jurisdiction of incorporation;
(c) A good standing certificate for the Seller issued by the Secretary of State or other similar official of Delawarethe Seller's jurisdiction of incorporation, certificates of qualification as a foreign corporation issued by the Secretaries of State or other similar officials of each jurisdiction where such qualification is material to the transactions contemplated by this Agreement and certificates of the appropriate state official in each jurisdiction specified by the Buyer as to the absence of any tax Liens against the Seller under the Laws of such jurisdiction, each such certificate to be dated a date reasonably near the Closing Date;
(d) A certificate of the secretary or an assistant secretary of the Seller dated as of June 10, 1999, certifying (i) the names and signatures of the officers authorized on the Seller's behalf to execute, and shall be in full force the officers and effectother employees authorized to perform, this Agreement by the Seller and (ii) a copy of the Seller's By-laws;
5.1.9 there shall have been no material adverse change (e) Executed copies of proper financing statements (Form UCC-l) naming the Seller as seller/debtor in respect of the Historical Advances, and the Buyer, as the purchaser/secured party, together with evidence of filing thereof in the Company's consolidated business appropriate jurisdictions; or financial condition since other similar instruments or documents as may be necessary or, in the date opinion of the CompanyBuyer, desirable under the UCC of all appropriate jurisdictions to evidence or perfect the Buyer's most recent unaudited financial statements contained ownership interests in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise Historical Advances;
(f) Executed copies of proper financing statements (Form UCC-3), if any, necessary under the Laws of all appropriate jurisdictions to release all security interests and other Liens or rights of any person in Historical Advances previously granted by the Warrants to be issued at Seller (except the Closing Lien of a Trust under the relevant Scheduled Pooling and Servicing Agreement);
(such number to be determined using the Conversion Price and Exercise Price in effect on g) Certified copies of lien search reports dated a date reasonably near the Closing Date listing all effective financing statements that name the Seller (under its present name and without regard any previous name or any trade names or "d.b.a." name) as debtor and which are filed in jurisdictions in which the filings were made pursuant to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as paragraph (e) above, together with copies of such date); and
5.1.11 there financing statements (none of which shall be no injunction, restraining order or decree of cover any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated herebyHistorical Advances, by the other Transaction Documents Scheduled Pooling and Servicing Agreements or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular daterelated rights);
5.2.2 each Investor shall have complied with (h) A favorable opinion or performed all opinions of the agreementsSeller, obligations dated the date hereof and conditions set forth addressed to the Buyer relating to corporate matters, legality and validity of this Agreement, and a favorable opinion or opinions of O'Melveny & Myerx XXX, counsel to the Seller, dated the date hereof and addressed to Buyer relating to the characterization of the transfer of the Historical Advances in a bankruptcy case as an absolute transfer, enforceability of this Agreement that are required to be complied with or performed by and of the Scheduled Supplements, the perfection of the Buyer's ownership interests in the Historical Advances and such Investor on or before other matters as the ClosingBuyer may reasonably request;
5.2.3 there shall be no injunction, restraining order or decree (i) An officer's certificate dated the date hereof in a form reasonably acceptable to the Buyer executed by a Responsible Officer of any nature of any court or Government Authority of competent jurisdiction that is in the Seller to the effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.(i) all
Appears in 1 contract
Samples: Historical Advance Purchase Agreement (Aames Financial Corp/De)
Conditions to Closing. 5.1 Conditions The obligation of each Investor to Investors' Obligations purchase and pay for the Series G Shares to be purchased by each Investor at the Initial Closing or any Additional Closing (each, a "Closing. Each ---------------------------------------------------------- Investor's obligations ") is subject to effect the Closing, including without limitation its obligation satisfaction at or prior to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor Closing of each of the following events as of the Closing Dateconditions:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 a) the Company shall have complied with or performed in all material respects all of the agreements, obligations duly authorized and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on filed a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Master Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of DelawareDelaware substantially in the form attached hereto as Exhibit 1, and a Designation of Subseries for the Subseries to be issued as provided therein;
(b) each of the Investors not already a party thereto shall have entered into that certain Stockholders' Agreement, by and between the Company, Xxx X. Xxxxxxxxxx, Xxxxxx Xxxxxx Xxxxxxx, Xxxxx X. Xxxxxxx and Xxxxxxx X. Xxxx, and certain other shareholders of the Company who own shares of the Series F Preferred Shares of the Company (the "Stockholders' Agreement");
(c) Xxxxxxxx Ingersoll Professional Corporation, Philadelphia, Pennsylvania, counsel for the Company, shall have delivered to each Investor a legal opinion, dated as of the Closing Date, in form and substance reasonably satisfactory to the Investors;
(d) at each Closing where NBCC is an Investor, the Company shall have delivered to NBCC the information required by the Small Business Administration (the "SBA"), including SBA Forms 480 (Size Status Declaration), 652 (Assurance of Compliance for Nondiscrimination) and 1031 (Portfolio Financing Report), that is requested by NBCC;
(e) the Company shall have delivered to each Investor the financial statements referred to in SECTION 2.7 below; and
(f) the Company shall have delivered to each Investor:
(i) the Certificate of Incorporation of the Company and all amendments thereto, certified by the Secretary of State of Delaware;
(ii) (A) copies of the Company's and each Operating Subsidiary's resolutions of the Board of Directors authorizing and approving this Agreement and all of the transactions and agreements contemplated hereby and thereby, (B) the Bylaws of the Company and (C) the names of the officer or officers of the Company and each Operating Subsidiary authorized to execute this Agreement and any and all documents, agreements and instruments contemplated herein, all certified by the Secretary of the Company to be true, correct, complete and in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized effect and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants unmodified as of such date); andClosing Date;
5.1.11 there shall be no injunction, restraining order or decree (iii) a good standing certificate for the Company and each Operating Subsidiary from the Secretary of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation State of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate jurisdiction of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by organization of each and a certificate from each state where the Company and each Operating Subsidiary is required (as provided in SECTION 2.1 hereof) to be qualified as a foreign corporation showing such qualification, dated as of a date within ten (10) days of such Closing Date;
(iv) the latest available consolidated budget/operating forecast of the Company and the Subsidiaries;
(v) a certificate of the President of the Company and of an authorized executive officer of each Operating Subsidiary, dated as of such Closing Date, stating that (i) there has been no Event of Default (as defined in SECTION 4.1(D)), other than any of the following events same that has been waived as provided in the first sentence of SECTION 9.1 hereof, and (ii) the representations and warranties set out in this Agreement are true, complete and accurate as of the date of such Closing Date, other than any changes thereto reflected in any Quarterly Report on Form 10-Q or 10-QSB (or other appropriate form then in use), any Annual Report on Form 10-K or 10-KSB (or other appropriate form then in use), any amendment thereto, or any other report or registration statement of the Closing:
5.2.1 Company filed with the representations Securities and warranties Exchange Commission (the "Commission") since the date of this Agreement, a copy of which was delivered to each Investor shall be true and correct in all material respects as of prior to such date as if made on such date (except that Investor's agreement to the extent that purchase any such representation or warranty relates to Subseries of Series G Shares; and (y) such other matters as may be set out in such Certificate, none of which could have a particular datematerial adverse effect on the Company and the Operating Subsidiaries, such representation or warranty shall be true and correct taken as a whole, in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all the discretion of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the CompanyInvestors; and
5.2.5 each Investor shall have delivered to (vi) such other documents, instruments, and certificates as the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsInvestors may reasonably request.
Appears in 1 contract
Samples: Stock Purchase Agreement (North American Technologies Group Inc /Mi/)
Conditions to Closing. 5.1 Conditions The occurrence of the Closing Date is subject to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations satisfaction on such date of the following conditions precedent:
(a) The Administrative Agent shall have received from each party hereto or thereto either (i) a counterpart of this Agreement and the Guarantee Agreement signed on behalf of such party or (ii) evidence satisfactory to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment Administrative Agent (which may include a facsimile transmission or waiver electronic transmission of a “pdf” or similar copy of a signature by such Investor party of a counterpart hereof) that such party has signed a counterpart of this Agreement and the Guarantee Agreement.
(b) The Administrative Agent shall have received a Note executed by each Borrower in favor of each Lender requesting a Note, provided that such request is made at least three Business Days prior to the Closing Date.
(c) The Administrative Agent shall have received each of the following events as following:
(i) a customary certificate, dated the Closing Date and signed by a Responsible Officer on behalf of the Closing Date:
5.1.1 the representations and warranties Company, (i) confirming satisfaction of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement Sections 4.2(a) and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer 4.2(b) and Chief Financial Officer of the Company, (ii) certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have has been no event or circumstance since December 31, 2014, that has had or could reasonably be expected to have a material adverse change in the Company's consolidated business business, results of operations, property or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;Company and its Subsidiaries, taken as a whole; and
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%ii) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on a customary certificate, dated the Closing Date and without regard signed by a secretary on behalf of each Borrower, attaching and providing customary certifications with respect to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as organizational documents and good standing of such date); and
5.1.11 there shall be no injunctionBorrower, restraining order or decree resolutions authorizing execution, delivery and performance of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of Loan Documents and the transactions contemplated hereby, thereby by such Borrower and the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each incumbency of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as Responsible Officers of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsBorrower.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its The obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each Lender to enter into this Agreement and make the Loans on the Closing Date shall be subject to the receipt by Agent of each agreement, document and instrument set forth on the closing checklist prepared by Agent or its counsel (attached hereto as Exhibit F), each in form and substance satisfactory to Agent, and such other closing deliverables reasonably requested by Agent and Xxxxxxx, and to the satisfaction of the following events conditions precedent, each to the satisfaction of Agent and Lenders in their sole discretion:
(a) the receipt by Agent of executed counterparts of this Agreement, the other Financing Documents and the Affiliated Financing Documents;
(b) the fact that, immediately before the Closing Date, no “Default” or “Event of Default” (as such terms are defined in the Existing Credit Agreement) shall have occurred and be continuing; MidCap / Cerus / A&R Credit, Security and Guaranty Agreement (Revolving Loan)
(c) the payment of all fees, expenses and other amounts due and payable under each Financing Document;
(d) since [***], the absence of any material adverse change in any aspect of the business, operations, properties or condition (financial or otherwise) of any Credit Party, or any event or condition which could reasonably be expected to result in such a material adverse change; and
(e) the receipt of the Borrowing Base Certificate, prepared as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in . Each Lender, by delivering its signature page to this Agreement and in the other Transaction Documents Agreement, shall be true deemed to have acknowledged receipt of, and correct in all material respects as of such date as if made on such date (except that consented to the extent that any such representation or warranty relates to a particular dateand approved, such representation or warranty shall be true each Financing Document, each additional Operative Document and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreementseach other document, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are agreement and/or instrument required to be complied with approved by Agent, Required Lenders or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10Lenders, 2004;
5.1.4 the Company shall have delivered to such Investor a certificateas applicable, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationDate.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Credit, Security and Guaranty Agreement (Revolving Loan) (Cerus Corp)
Conditions to Closing. 5.1 Section 6.1 The Company's and the Significant Shareholders' Conditions to Investors' Obligations Close. The obligations of the Company and the Significant Shareholders under this Agreement are subject to the satisfaction at or prior to the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor Closing of each of the following events conditions, but compliance with any or all of such conditions may be waived, in writing, by the Company or the Significant Shareholders, as of the Closing Datecase may be:
5.1.1 the (a) The representations and warranties of the Company set forth Parent contained in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such on the date as if made hereof and on such date the Closing Date (except that to the extent that any such representation or warranty relates they expressly relate to a particular date, such representation or warranty shall be true and correct in all respects as of that particular an earlier date);
5.1.2 (b) Parent shall have performed and complied with all of the covenants and agreements contained in this Agreement (other than in Section 5.6) in all material respects and satisfied all of the conditions required by this Agreement to be performed or complied with or satisfied by Parent at or prior to the Closing;
(c) Parent and the Company shall have complied with received all approvals and actions of or performed in by all material respects all of Governmental Bodies, which are necessary to consummate the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closingtransactions contemplated hereby;
5.1.3 (d) On the Closing Date shall occur on a date that is not later than February 10Date, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is Governmental Body in effect that restrains or prohibits the consummation of the transactions contemplated herebyby this Agreement or the Merger Agreement;
(e) No action, suit or proceeding shall have been instituted by any person or entity (other than the Company or any Significant Shareholder), or threatened by any Governmental Body, before a court or Governmental Body, to restrain or prevent the carrying out of the transactions contemplated by this Agreement and the Merger Agreement;
(f) The Merger and the Merger Agreement shall have been duly approved by the other Transaction Documents or by affirmative vote of the Certificate holders of Designation.not less than two-thirds of the shares of Company Common Stock outstanding and entitled to vote with respect thereto;
5.2 Conditions (g) Parent and Mergerco shall have executed and delivered to Company's Obligations at the respective party thereto the Xxxxxxxxx Employment Agreement, the Schetina Employment Agreement, the Xxxxxxx Employment Agreement and the Xxxxx Employment Agreement;
(h) Parent shall have executed and delivered to the Shareholders the Registration Rights Agreement, as amended, in the form attached hereto as Exhibit E (the "Registration Rights Agreement");
(i) Parent shall have executed and delivered to the Shareholders the Post-Closing Notes;
(j) Xxxxxxx Xxxxx shall have entered into a Stock Escrow Agreement, in the form of Exhibit K hereto (the "Allin Escrow Agreement"), Xxxxx Xxxxxxx shall have entered into a Stock Escrow Agreement, in the form of Exhibit L hereto (the "Xxxxxxx Escrow Agreement"), and Xxxx Xxxxxxx shall have entered into a Stock Escrow Agreement, in the form of Exhibit M hereto (the "Linting Escrow Agreement") and Parent shall have executed and delivered to the respective party thereto the Allin Stock Escrow Agreement, the Xxxxxxx Stock Escrow Agreement, the Linting Stock Escrow Agreement, the Xxxxxxxxx Stock Escrow Agreement and the Schetina Stock Escrow Agreement;
(k) Parent shall have settled any outstanding disputes with Lok Technology, Inc., a Delaware corporation;
(l) A certificate, dated as of the Closing. , signed by an officer of Parent to the effect set forth in clauses (a) through (f), inclusive, of this Section 6.1;
(m) The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver Trust Agreement shall have been terminated;
(n) Receipt by the Company and the Significant Shareholders of each a valuation opinion issued by a financial advisor reasonably acceptable to such parties and their legal counsel and in a form reasonably acceptable to such parties and their legal counsel opining as to the per share value of the following events as shares of Parent Common Stock issued on the date of the Closing:Closing Date pursuant to Section 1.4(a)(i);
5.2.1 the representations (o) There shall not have occurred any change which would or would be reasonably likely to have a Material Adverse Effect on Parent and warranties of each Investor Parent shall be true and correct have operated in all material respects with the business plan attached hereto as Exhibit J;
(p) The Employment Agreements executed by each of such date Xxxxxxx Xxxxx, Chief Executive Officer of Parent, Xxxxxxx Xxxxxxx, President of Services of Parent, and Xxxxx Xxxxxxx, President of Products of Parent, each attached hereto as if made on such date Exhibit P, shall be in full force and effect;
(except that q) The FDC Contract shall be in full force and effect and no party thereto shall be in default thereunder and neither Bankcard Investigative Group Inc., a Delaware corporation, nor any of its Affiliates, shall have objected in writing to the extent that transfer of the FDC Contract or otherwise indicated in writing an intention to terminate or modify the FDC Contract in any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)manner;
5.2.2 each Investor (r) The Company shall have complied with received an opinion, dated the Closing Date, from Xxxxxxxx Xxxxxx, based upon such information as Xxxxxxxx Xxxxxx deems necessary or performed all appropriate dated the Closing Date (and which the parties agree to provide as reasonably requested by counsel, including making reasonable representations), to the effect that the Merger will qualify as a tax-free reorganization under the provisions of Section 368(a)(1)(A) of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the ClosingCode;
5.2.3 there (s) The shareholders of Patron Holdings shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits have approved the consummation of Patron Holdings Merger and Parent and Patron Holdings shall have effected the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationPatron Holdings Merger;
5.2.4 each Investor (t) Parent shall have executed each consummated one or more additional rounds of financing and shall have received at least $10,000,000 in connection therewith in the Transaction Documents to which it is a party and delivered the same to the Companyform of equity or convertible debt; and
5.2.5 each Investor (u) The Company shall have delivered received an opinion of counsel to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at Parent, dated the Closing by wire transfer of immediately available funds.Date, substantially in the form attached hereto as Exhibit Q.
Appears in 1 contract
Samples: Supplemental Agreement (Combined Professional Services Inc)
Conditions to Closing. 5.1 Conditions to InvestorsCONDITIONS TO INVESTORS' Obligations at the ClosingOBLIGATIONS AT THE CLOSING. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants Purchased Securities at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10June 15, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered to ` such Investor duly executed certificates representing the Preferred Stock Shares, Series C Warrant and the Warrants Series D Warrant being purchased by such Investor;
5.1.7 the Company shall have executed and delivered to such Investor the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 5.1.9 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby or by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the CompanyDocuments; and
5.2.5 each Investor shall have delivered to 5.1.10 the Company the aggregate Purchase Price for Preferred Stock and the Warrants being purchases by it to be paid at the Closing by wire transfer of immediately available fundsthe Investors for the Purchased Securities shall be at least $1,250,000.
Appears in 1 contract
Samples: Securities Purchase Agreement (Raptor Networks Technology Inc)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's The several obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events Underwriters --------------------- hereunder are subject to the accuracy, on and as of the date of the Underwriting Agreement and the Closing Date:
5.1.1 , of the representations and warranties of the Company contained herein, to the accuracy of the statements of the Company and its officers made in any certificates delivered pursuant hereto, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
(a) Subsequent to the execution and delivery of the Underwriting Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its Subsidiaries, taken as a whole, from that set forth in this Agreement the Prospectus (exclusive of any amendment or supplement thereto on or after the date hereof), that is material and adverse and that makes it, in the judgment of the Managers, impracticable or inadvisable to market the Offered Securities on the terms and in the other Transaction Documents manner contemplated in the Prospectus.
(b) The Managers shall be have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct in all material respects as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such date certificate may rely upon the reasonable best of his knowledge as if made to proceedings threatened.
(c) The Managers shall have received on the Closing Date an opinion of Jenkens & Xxxxxxxxx, a Professional Corporation, counsel to the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such date (qualification, except that to the extent that any such representation the failure to be so qualified or warranty relates to be in good standing would not have a particular datematerial adverse effect on the Company and its Subsidiaries, such representation or warranty shall be true and correct in all respects taken as of that particular date)a whole;
5.1.2 (ii) each Material Corporate Subsidiary has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company shall and its Subsidiaries, taken as a whole;
(iii) each Material Partnership has been duly formed and is validly existing under the laws of its jurisdiction of formation and has the partnership power and authority to carry on its business as it is currently being conducted and to own, lease and operate its properties, and each is duly qualified as a foreign partnership authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have complied with or performed in all a material respects all adverse effect on the Company and its Subsidiaries, taken as a whole;
(iv) this Agreement has been duly authorized, executed and delivered by the Company;
(v) the Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the agreementsCompany, obligations enforceable against the Company in accordance with its terms, except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and conditions set forth (b) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability;
(vi) the Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company and are valid and binding agreements of the Company, enforceable in this Agreement accordance with their respective terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (b) the availability of equitable remedies may be limited by equitable principles of general applicability;
(vii) the Offered Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for (A) by the Underwriters in accordance with the terms of the Underwriting Agreement, in the other case of Underwriters' Securities, or (B) by institutional investors in accordance with the terms of the Delayed Delivery Contracts, in the case of the Contract Securities, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, in each case enforceable against the Company in accordance with their respective terms except as (1) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (2) rights of acceleration, if any, and the availability of equitable remedies may be limited by equitable principles of general applicability;
(viii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture, the Offered Securities and the Transaction Documents will not contravene any provision of applicable law, or the certificate of incorporation or bylaws of the Company or, to the best of such counsel's knowledge, any agreement or other instrument binding upon the Company or any of its Material Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or, to the best of such counsel's knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its Subsidiaries, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture, the Offered Securities, or the Transaction Documents except such as may be required by the securities or Blue Sky laws of the various states in connection with the purchase and distribution of the Offered Securities by the Underwriters;
(ix) the statements in the Prospectus under the captions "Description of the Debt Securities" and "Plan of Distribution," in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(x) to the knowledge of such counsel, there are not any legal or governmental proceedings pending or threatened to which the Company or any of its Material Subsidiaries is a party or to which any of the properties of the Company or any of its Material Subsidiaries is subject that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified described in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 Statement or the Company shall have delivered evidence reasonably satisfactory to the Investors confirming Prospectus and that the Certificate of Designation shall have been duly authorized and adopted are not so described or incorporated by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business reference or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court statutes, regulations, contracts or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement documents that are required to be complied with described in the Registration Statement or performed the Prospectus or to be filed or incorporated by such Investor on reference as exhibits to the Registration Statement and that are not described, filed or before the Closingincorporated as required;
5.2.3 there shall be no injunction(xi) the Company is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companyas amended; and
5.2.5 (xii) such counsel (A) is of the opinion that each Investor document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Prospectus (except for financial statements and schedules included therein as to which such counsel need not express any opinion), complied when so filed as to form in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder and (B) is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules as to which such counsel need not express any opinion), comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder. In addition, such counsel shall state his belief that (1) each part of the Registration Statement (except for financial statements and schedules as to which such counsel need not express any belief and except for that part of the Registration Statement that constitutes the Form T-1 heretofore referred to and statements of the underwriters), when such part became effective did not, and, as of the date such opinion is delivered, does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (2) the Prospectus (except for financial statements and schedules as to which such counsel need not express any belief), as of the date such opinion is delivered, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may state that his belief is based upon his participation in the preparation of the Registration Statement and Prospectus, any amendments or supplements thereto and any documents incorporated therein by reference, his consultation with other officers of the Company who have participated in the preparation of the Registration Statement and Prospectus, any amendments or supplements thereto and any documents incorporated therein by reference and upon his review and discussion of the contents thereof, but are without independent check or verification, except as specified.
(d) The Managers shall have received on the Closing Date an opinion of Jenkens & Xxxxxxxxx, a Professional Corporation, counsel for the Underwriters, dated the Closing Date, covering the matters referred to in subparagraphs (iv), (v), (vi), (ix) (but only as to the statements in the Prospectus under "Description of Debt Securities" and "Plan of Distribution") and (xii) (B) of subsection (c) above. In addition, such counsel shall state its belief that (1) each part of the Registration Statement (except for financial statements and schedules as to which such counsel need not express any belief and except for that part of the Registration Statement that constitutes the Form T-1 heretofore referred to), when such part became effective did not, and, as of the date such opinion is delivered, does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (2) the Prospectus (except for financial statements and schedules as to which such counsel need not express any belief) as of the date such opinion is delivered does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such counsel may state that its belief is based upon its participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto (but not including documents incorporated therein by reference) and upon its review and discussion of the contents thereof (including documents incorporated therein by reference), but are without independent check or verification, except as specified. The opinion of counsel to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it described in subsection (c) above shall be rendered to Underwriter's counsel at the Closing by wire transfer request of immediately available fundsthe Company and shall so state therein.
Appears in 1 contract
Samples: Underwriting Agreement (Americredit Capital Trust I)
Conditions to Closing. 5.1 Conditions to Investors' Purchaser's Obligations at the Closing. Each ---------------------------------------------------------- InvestorPurchaser's ------------------------------------------------ obligations to effect at the Closing, including without limitation its obligation to purchase the Preferred Stock Shares and Warrants at the ClosingWarrant being purchased by such Purchaser, are conditioned upon the fulfillment satisfaction by the Company (or waiver by such Investor Purchaser) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10October 6, 20041999;
5.1.4 the Company shall have delivered to such Investor Purchaser a certificate, signed by the Chief Executive Officer and Chief Financial Officer an officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor Purchaser may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor Purchaser an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto, and covering such additional matters as may reasonably be requested by such Purchaser;
5.1.6 the Company shall have delivered to such Purchaser duly executed certificates representing the Preferred Stock Shares and the Warrants Warrant being purchased by such InvestorPurchaser;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company Common Stock shall be listed for trading on the Nasdaq National Market and no suspension of trading in the Common Stock on such market shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized occurred and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State be continuing as of the State of Delaware, and shall be in full force and effectClosing Date;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion required to be reserved under paragraph 4.5 hereof, and shall have provided such Purchaser with reasonable evidence thereof;
5.1.10 the Company shall have delivered to such Purchaser proposed "final" drafts of all each Schedule to this Agreement, together with a proposed "final draft" of the Preferred Stock and exercise opinion required by 5.5.1, no later than the close of all of business on the Warrants fifth (5/th/) Business Day immediately prior to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)Date; and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the each other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor Purchaser shall have complied with or performed all tendered payment of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for the number of Preferred Stock and Shares set forth on such other Purchaser's signature page hereto so that the Warrants being purchases aggregate amount tendered by it at all of the Closing by wire transfer of immediately available fundsPurchasers hereunder is no less than ten million dollars ($10,000,000).
Appears in 1 contract
Samples: Securities Purchase Agreement (Asymetrix Learning Systems Inc)
Conditions to Closing. 5.1 Conditions No Lender shall be obligated to Investors' Obligations at make the Closing. Each ---------------------------------------------------------- Investor's obligations initial Prefunding, nor shall any Secured Party, the Deal Agent or the Liquidity Agent be obligated to effect take, fulfill or perform any other action hereunder, until the Closingfollowing conditions have been satisfied, including without limitation its obligation to purchase in the Preferred Stock and Warrants at sole discretion of, or waived in writing by the ClosingInsurer, are conditioned upon or the fulfillment or waiver by such Investor Deal Agent with the consent of the Insurer:
(a) The Deal Agent shall have received each of the following events documents, each of which is dated (unless otherwise indicated) as of the Closing Date, in form and substance satisfactory to the Deal Agent:
(i) this Agreement, executed and delivered by the parties hereto;
(ii) the Note, executed and delivered by the Borrower;
(iii) the Insurance Agreement, executed and delivered by the parties thereto;
(iv) the Sale and Purchase Agreement I and the Sale and Purchase Agreement II executed and delivered by the parties thereto;
(v) the Servicing Agreement executed and delivered by the parties thereto;
(vi) certificate of the Secretary or an Assistant Secretary of each of UAC and the Borrower, in each case certifying:
(A) that attached thereto are true and correct copies of the following, each of which is true, correct and complete as of the Closing Date:
5.1.1 the representations and warranties (1) articles of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in incorporation, including all material respects amendments thereto, certified as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such recent date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 case of UAC, by the Company shall have delivered duly executed certificates representing Secretary of State of the Preferred Stock and State of Indiana, and, in the Warrants being purchased case of the Borrower, by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%2) of the aggregate number of shares of Common Stock issuable upon conversion of bylaws, including all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)amendments thereto; and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation (3) resolutions of the transactions contemplated herebyBoard of Directors authorizing, by among other things, the other execution, delivery and performance of each Transaction Document to which UAC or the Borrower, as the case may be, is a party; and
(B) the names and the signatures of its officers authorized to sign the Transaction Documents to which UAC or by the Borrower, as the case may be, is a party;
(vii) Officer's Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of from each of UAC and the following events as Borrower, certifying that (A) each of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct such party contained in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party are true and delivered correct on and as of the same Closing Date as if made on such date, (B) no Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default exists on the Closing Date and (C) no material adverse change in its condition, financial or otherwise, business, operations, results of operations or properties has occurred which has not been disclosed to the CompanyDeal Agent;
(viii) UCC, judgment and tax lien search reports for UAC and the Borrower satisfactory to the Deal Agent;
(ix) opinions of counsel, addressed to the Lenders and the Insurer, satisfactory to the Deal Agent, as to the following matters:
(A) non-consolidation in bankruptcy of the Borrower and the Seller with UAC;
(B) true sale of the Receivables from UAC to the Seller and from the Seller to the Borrower;
(C) perfection and priority of security interest of the Deal Agent in the Collateral; and
5.2.5 each Investor (D) authorization, execution, delivery and enforceability of the Transaction Documents to which the UAC Entities are parties;
(x) the Fee Letter, executed and delivered by the parties thereto;
(xi) a Hedging Agreement, executed and delivered by the parties thereto;
(xii) such documents, certificates and opinions as to the Servicer as the Deal Agent may reasonably request; and
(xiii) such other documents, certificates and opinions as the Deal Agent may reasonably request.
(b) As of the Closing Date, the Deal Agent shall have delivered received (i) satisfactory evidence that each UAC Entity has obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the Company the Purchase Price for Preferred Stock execution, delivery and performance of this Agreement and the Warrants being purchases other Transaction Documents to which it is a party and the consummation of the transactions contemplated hereby or thereby or (ii) an Officer's Certificate from any such entity in form and substance satisfactory to the Deal Agent affirming that no such consents or approvals are required.
(c) As of the Closing Date, the Borrower shall be in compliance in all material respects with all applicable Requirements of Law.
(d) The Borrower shall have paid, or cause to have been paid, all fees required to be paid by it at on the Closing Date, including all fees required hereunder and under the Fee Letter to be paid as of the Closing Date, and, subject to any prior agreement among UAC, the Borrower and the Deal Agent, shall have reimbursed each Lender and the Deal Agent for all fees, costs and expenses of closing the transactions contemplated hereunder and under the other Transaction Documents, including the legal and other document preparation costs incurred by wire transfer of immediately available fundsthe Deal Agent and any Lender.
Appears in 1 contract
Samples: Loan and Security Agreement (Union Acceptance Corp)
Conditions to Closing. 5.1 Conditions The obligation of the Subscriber to Investors' Obligations purchase and pay for the Shares on the Closing Date is subject to the satisfaction, at the Closing. Each ---------------------------------------------------------- Investor's obligations or prior to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Dateconditions:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 a) the Company shall have complied with or performed in all material respects all duly authorized and filed the amended and restated Articles of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such dateIncorporation, in substantially in the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate actionattached hereto as EXHIBIT A, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effectWashington;
5.1.9 there (b) the Company shall have been no material adverse change in effected the Company's consolidated business or financial condition since Stock Split;
(c) the date Founders shall have transferred all shares of the Company's most recent unaudited financial statements contained in Class B Common Stock held by the Disclosure DocumentsFounders to TalMan;
5.1.10 (d) the Company shall have authorized entered into the Shareholder Agreement and reserved for issuance at least one hundred and fifty percent the Registration Rights Agreement;
(150%e) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock covenants and exercise of all agreements of the Warrants to be issued at Company and the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth Founders contained in this Subscription Agreement that are and required to be complied with or performed by such Investor on or before prior to the ClosingClosing Date shall have been complied with or performed in all material respects;
5.2.3 there (f) all representations of the Company and the Founders in SECTION 5 shall have been true and correct when made and shall be no injunctiontrue and correct, restraining order or decree in all material respects, as of any nature the Closing Date with the same force and effect as if made as of any court or Government Authority the Closing Date, other than representations and warranties as are made as of competent jurisdiction a specific date, which shall be true and correct as of such date and shall be certified by an officer of the Company to that is effect;
(g) each of Weymouth and Taylor shall have signed employment agreements in effect that restrains or prohibits substantially xxx xxrm attached hereto as EXHIBIT B;
(h) the Stock Purchase Agreement shall have been executed and delivered by the parties thereto, and all of the conditions thereto required to be satisfied prior to the consummation of the transactions contemplated hereby, by thereby (with the other Transaction Documents or by exception of such deliveries required upon the Certificate consummation of Designation;
5.2.4 each Investor such transactions) shall have executed been satisfied, in each case without waiver by any party of the Transaction Documents to which it is a party and delivered the same to the Companyconditions specified therein; and
5.2.5 each Investor (i) the Company shall have delivered to the Subscriber:
(i) the Articles of Incorporation of the Company and all amendments and restatements thereto, certified by the Purchase Price for Preferred Stock Secretary of State of Washington; and
(ii) (A) copies of the resolutions of the Company's Board of Directors authorizing and approving this Subscription Agreement and all of the Warrants being purchases transactions and agreements contemplated hereby and thereby; (B) the Bylaws of the Company; and (C) the names of the officer or officers of the Company authorized to execute this Subscription Agreement and any and all documents, agreements and instruments contemplated herein, all certified by it at the Secretary of the Company to be true, correct, complete and in full force and effect and unmodified as of the Closing by wire transfer of immediately available fundsDate.
Appears in 1 contract
Conditions to Closing. 5.1 6.1. The Company's and the Shareholders' Conditions to Investors' Obligations Close. The ------------------------------------------------------- obligations of the Company and the Shareholders under this Agreement are subject to the satisfaction at or prior to the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor Closing of each of the following events conditions, but compliance with any or all of such conditions may be waived, in writing, by the Company or the Shareholders, as of the Closing Datecase may be:
5.1.1 the (a) The representations and warranties of the Company set forth Purchaser contained in this Agreement and in the other Transaction Documents shall be true and correct on the date hereof and on the Closing Date (except to the extent that they expressly relate to an earlier date);
(b) The Purchaser shall have performed and complied in all material respects as with all of such date as if made on such date (except that the covenants and agreements contained in this Agreement and satisfied all of the conditions required by this Agreement to be performed or complied with or satisfied by the Purchaser at or prior to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)Closing;
5.1.2 (c) The Purchaser and the Company shall have complied with received all approvals and actions of or performed in by all material respects all of Governmental Bodies, which are necessary to consummate the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closingtransactions contemplated hereby;
5.1.3 (d) On the Closing Date shall occur on a date that is not later than February 10Date, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is Governmental Body in effect that restrains or prohibits the consummation of the transactions contemplated herebyby this Agreement;
(e) No action, suit or proceeding shall have been instituted by any person or entity, or threatened by any Governmental Body, before a court or Governmental Body, to restrain or prevent the other Transaction Documents or carrying out of the transactions contemplated by this Agreement;
(f) A certificate, dated as of the Certificate Closing, signed by an officer of Designation.the Purchaser to the effect set forth in clauses (a) through (e), inclusive, of this Section 6.1;
5.2 (g) The Purchaser shall have entered into the Escrow Agreement, in the form of Exhibit "1" hereto, the Shareholders Agreement, in the form of ----------- Exhibit "2" hereto, and the Xxxxx Employment Agreement, and the Xxxxxx ---------- Employment Agreement, in the form of Exhibits "3-A" and "3-B" hereto. ------------- ---
6.2. The Purchaser's Conditions to Company's Obligations at the ClosingClose. The Company's ---------------------------------------------------- obligations of the ----------------------------------- Purchaser under this Agreement are subject to effect the satisfaction at or prior to the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as conditions, but compliance with any or all of any such conditions may be waived, in writing, by the Purchaser:
(a) The Purchaser shall have conducted a thorough due diligence review (the "Due Diligence Review") of the date Business and the Company and shall be satisfied with the results and findings thereof. The Company and the Shareholders agree that the Purchaser and the Purchaser's representatives, legal counsel, accountants, advisors and representatives shall be given, until the Closing, full access to:
(i) the assets and properties of the Closing:Company; (ii) the books and records (including electronic records) of the Company pertaining to the Business, including, but not limited to, income tax returns, sales and use tax returns, the Company's Financial Statements, and related materials, bank statements, invoices, accounts receivable, accounts payable and supplier lists; and (iii) all files maintained by the Company and the Company's attorneys, brokers or other agents relating to the Business. The Company shall permit the Purchaser to copy, at the Purchaser's expense, the contents of all such books, records and files. The Purchaser shall treat all information obtained as a result of the Due Diligence Review as confidential and proprietary information belonging to the Company;
5.2.1 the (b) The representations and warranties of each Investor the Company and the Shareholders contained in this Agreement shall be true and correct on the date hereof and on the Closing Date (except to the extent that they expressly relate to an earlier date);
(c) The Company and the Shareholders shall have performed and complied in all material respects as of such date as if made on such date (except that with all the covenants and agreements contained in this Agreement and satisfied all the conditions required by this Agreement to the extent that any such representation be performed or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required satisfied by it or them at or prior to be complied with or performed by such Investor on or before the Closing;
5.2.3 (d) The Purchaser and the Company shall have received all approvals and actions of or by all Governmental Bodies, which are necessary to consummate the transactions contemplated hereby;
(e) On the Closing Date, there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is Governmental Body in effect that restrains or prohibits the consummation of the transactions contemplated herebyby this Agreement;
(f) No action, suit or proceeding shall have been instituted by any person or entity, or threatened by any Governmental Body, before a court or Governmental Body, to restrain or prevent the carrying out of the transactions contemplated by this Agreement or that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Business or the results of operations, properties or condition (financial or otherwise) of the Company;
(g) The Company shall have received all necessary consents or approvals (including an approval of the transaction by the other Transaction Documents or Company's Board of Directors and its remaining shareholders), in form and substance reasonably satisfactory to the Purchaser, to the transactions contemplated by the Certificate of Designationthis Agreement;
5.2.4 each Investor (h) Since the Balance Sheet Date, there shall not have executed each of the Transaction Documents occurred any change which would have or would be likely to which it is have a party and delivered the same Material Adverse Effect with respect to the Company; and;
5.2.5 each Investor (i) The Shareholders shall have delivered entered into the Escrow Agreement, in the form of Exhibit "1" hereto and the Shareholders Agreement, in the form of ----------- Exhibit "2" hereto, Xxxx Xxxxx shall have entered into the Xxxxx Employment ----------- Agreement, in the form of Exhibit "3-A" hereto, and Xxxxxxx Xxxxxx shall have ------------- entered into the Xxxxxx Employment Agreement, in the form of Exhibit "3-B" ------------- hereto;
(j) The Purchaser shall have received the Working Capital Statement;
(k) Certificates, dated as of the Closing, signed by the Shareholders and by the President of the Company, respectively, to the effect set forth in clauses (b) and (c) of this Section 6.2, with the Certificate signed by the President of the Company to the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer additional effect set forth in clauses (b) through (h), inclusive, of immediately available fundsthis Section 6.2.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's The obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Company and Xxxxxx Xxxxxxx hereunder are subject to the following events as conditions:
(a) Xxxxxx Xxxxxxx shall have received on the Closing Date a certificate dated the Closing Date and signed by an executive officer of the Closing Date:
5.1.1 Company, to the effect that the representations and warranties of the Company set forth contained in this Stock Purchase Agreement and in the other Transaction Documents shall be are true and correct as of the Closing Date and that the Company has complied in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations agreements and satisfied all of the conditions set forth in this Agreement and in the other Transaction Documents that are required on its part to be complied with performed or performed by satisfied hereunder and under the Company Registration Rights Agreement on or before the Closing;Closing Date.
5.1.3 (b) Xxxxxx Xxxxxxx shall have received on the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 (i) the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of Dolgenos Xxxxxx & Xxxxxx LLP, counsel for the Company, dated as of such datethe Closing Date, in substantially the form set forth on in Exhibit 5.1.5 A attached hereto;, (ii) an opinion of counsel for Unilabs Holdings SA, a Panama corporation (the "Parent"), dated the Closing Date, set forth in Exhibit B attached hereto and (iii) an opinion of counsel for Unilabs Holdings SA, a Switzerland corporation (the "Grandparent"), dated the Closing Date, set forth in Exhibit C attached hereto.
5.1.6 the Company (c) Xxxxxx Xxxxxxx shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect received on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation (i) a copy of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver Registration Rights Agreement duly executed and delivered by the Company of each and (ii) a copy of the following events as side letter (the "Side Letter Agreement") among Xxxxxx Xxxxxxx, the Parent, the Grandparent and Xxxxxx Xxxxx of Xxxxxx Xxxxxxxxxxxxx, 0000 Xxxxxxx, Xxxxxxxxxxx (the date of the Closing:
5.2.1 the representations "Controlling Shareholder"), duly executed and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, delivered by the other Transaction Documents or by the Certificate Parent, Grandparent and such Controlling Shareholder, relating to certain tag-along rights of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsXxxxxx Xxxxxxx.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The several obligations of the Purchasers to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to --------------------- purchase the Preferred Stock and Warrants at Shares on the Closing, Closing Date hereunder are conditioned upon the fulfillment or waiver by such Investor of each of subject to the following events as of the Closing Dateconditions:
5.1.1 (a) the tender offer by the Company's subsidiary, BGII Acquisition Corp., a Delaware corporation ("BGII"), for 4.4 million shares of Common Stock, $.01 par value, of Bally Gaming International, Inc., a Delaware corporation ("Bally"), as the same may be amended from time to time (the "Tender Offer"), shall have been consummated on or before December 15, 1995;
(b) the representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents shall be true and correct in all material respects on and as of the Closing Date as though made on and as of such date as if made on such date (except that to the extent that any such representation or warranty relates to for those made as of a particular specified date, such representation or warranty which shall be true and correct in all respects as of that particular such date);
5.1.2 ) and the Company shall have complied with or performed in all material respects all of the agreements, its obligations and conditions set forth in this Agreement and in the other Transaction Documents that are hereunder required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 and the Company Placement Agent shall have delivered received an Officers' Certificate addressed to such Investor a certificate, the Purchasers and signed by the Chief Executive Officer and the Chief Financial Officer to the effect of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made hereinforegoing;
5.1.5 (c) the Company Purchasers shall have delivered to such Investor an received a legal opinion of counsel for or opinions covering the Company, dated as of such date, in substantially the form matters set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)Annex B; and
5.1.11 there shall be (d) no injunction, writ, restraining order or decree other order of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation arising out of the transactions contemplated hereby, Tender Offer or the purchase of the Shares hereunder shall have been issued by any governmental or judicial authority and remain in force against such Purchaser preventing such Purchaser from purchasing Shares or against the Company preventing the Company from issuing the Shares and the Placement Agent shall have received an Officers' Certificate addressed to the Purchasers and signed by the other Transaction Documents or by Chief Executive Officer and the Certificate of Designation.
5.2 Conditions Chief Financial Officer to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events foregoing insofar as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty foregoing relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants any Notes at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that that, to the extent that any such representation or warranty relates to a particular date, such representation or 35 warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer a duly authorized officer of the Company, certifying that the conditions specified in this paragraph 5.1 SECTIONS 5.1.1 and 5.1.2 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the memorandum and articles of association of the Company and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and certifying that such documents are true and complete copies of the originals and have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Companyopinions, dated as of such datethe Closing Date, of (i) as to matters under Cayman Islands law, Cayman Islands counsel for the Company in the form attached hereto as EXHIBIT C-1 hereto, (ii) as to certain matters under New York law and U.S. federal securities law, King & Spalding LLP in the form attached hereto as EXHIBIT C-2 hereto, and (iii) as to certain other matters, the Company's General Counsel, in substantially the form set forth on Exhibit 5.1.5 heretoattached hereto as EXHIBIT C-3;
5.1.6 the Company shall have delivered duly executed certificates representing and, to the Preferred Stock extent applicable, Games and the Warrants being purchased by such Investor;
5.1.7 the Company Software, shall have executed and delivered to such Investor the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized Agreement and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)each other Transaction Document; and
5.1.11 5.1.7 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents or by the Certificate of DesignationDocuments.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing with an Investor are conditioned upon the fulfillment (or waiver by the Company in its sole and absolute discretion) of each of the following events as of the date of the ClosingClosing Date:
5.2.1 the representations and warranties of each such Investor set forth in this Agreement and in the other Transaction Documents to which it is a party shall be true and correct in all material respects as of such date as if made on such date (except that that, to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.2.2 each such Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents or by the Certificate of DesignationDocuments;
5.2.4 each such Investor shall have executed each of the Transaction Documents Document to which it is a party and shall have delivered the same to the Company; and
5.2.5 each such Investor shall have delivered provided the Company with any forms reasonably requested by the Company prior to the Company Closing to establish that no payments to such Investor under the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsNotes will be subject to withholding tax in any taxing jurisdictions.
Appears in 1 contract
Samples: Note Purchase Agreement (CDC Corp)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its The City’s obligation to purchase proceed with the Preferred Stock and Warrants at Closing is subject to the Closing, are conditioned upon the Applicant’s fulfillment or waiver by such Investor of each of the following events as of conditions at or prior to the Closing DateClosing:
5.1.1 the a. All representations and warranties of the Company set forth in Applicant shall be true as of the Closing.
b. The Applicant shall have delivered to the City:
(1) Evidence of Good Standing of the Applicant from the Nebraska Secretary of State;
(2) A copy of the current and correct Certificate of Organization and Operating Agreement of the Applicant certified by the members (the “Members”) to be correct;
(3) Certified resolutions of the Members authorizing this Agreement and providing for signature authority.
c. In order to secure the Loan and the Repayment, the Applicant shall have delivered to the City the following”
(1) A guaranty (the “Guaranty”) of the Members of the Applicant and XxXxxxx Solutions, LLC. The Guaranty shall be in the other Transaction Documents form of the attached “Exhibit B”.
(2) The Assistance shall be true secured by a Deed of Trust (the “Deed of Trust”) covering the Real Estate of the Business, to be executed by the Members of the Applicant as husband and correct wife. The Deed of Trust shall be in the form of the attached “Exhibit C”. The Deed of Trust shall be second in priority to liens held by Platte Valley Bank.
(3) A Security Agreement covering the Applicant’s equipment dated February 21, 2018, the liens of which were perfected by Uniform Commercial Code Financing Statement 9818042631-9 with the Nebraskas Secretary of State, shall secure the payment of the Note and the Applicant’s performance under this Agreement The security interests conveyed in the Security Agreement shall be second in priority to a lien held by Platte Valley Bank.
d. The Applicant shall in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular datehave performed its obligations, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth covenants contained in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on them, on, or before the Closing;.
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there e. There shall have been no material adverse change in the Company's consolidated business operation or financial condition since the date status of the Company's most recent unaudited financial statements contained in Applicant and the Disclosure Documents;Closing shall constitute the Applicant’s representations that there has been no such material adverse change.
5.1.10 f. In requesting the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) disbursement of the aggregate number of shares of Common Stock issuable upon conversion of all of Assistance, the Preferred Stock Applicant is considered to have represented that the above conditions have been satisfied and exercise of all of the Warrants are continuing to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designationsatisfied.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions On or prior to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations date of the execution of this Agreement, the Seller shall deliver or cause to effect be delivered to the ClosingAdministrative Agent the following documents and instruments, including without limitation its obligation all of which shall be in a form and substance acceptable to purchase the Preferred Stock Administrative Agent and Warrants at each Facility Agent (with copies for the ClosingFacility Agents, are conditioned upon and with such additional copies thereof as the fulfillment Administrative Agent may request):
(a) Copies of the resolutions of the board of managers or waiver by such Investor directors of each of the following events Xxxxxxxx Party, each certified as of the Closing Date:
5.1.1 date hereof by such Person’s secretary or an assistant secretary authorizing the representations execution, delivery and warranties performance of the Company set forth in this Agreement (at a potential Maximum Net Investment of $800,000,000), any other Transaction Document to which such Person is a party, and in the other Transaction Documents shall documents to be true delivered by such Person hereunder and correct in all material respects approving the transactions contemplated hereby and thereby;
(b) The certificate of formation or incorporation of each Xxxxxxxx Party certified as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 reasonably near the Company shall have delivered to such Investor a certificate, signed date hereof by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State or other similar official of such Person’s jurisdiction of organization or incorporation, as applicable;
(c) A good standing certificate for each Xxxxxxxx Party issued by the Secretary of State or other similar official of such Person’s jurisdiction of organization or incorporation, each such certificate to be dated a date reasonably near the date hereof;
(d) A certificate of the secretary or, in the case of the Seller, other authorized officer, of each Xxxxxxxx Party dated the date hereof and certifying (i) the names and signatures of the officers authorized on such Person’s behalf to execute, and the Responsible Officers authorized to perform, this Agreement, any other Transaction Document to which such Person is a party, and any other documents to be delivered by such Person hereunder (on which certificate the Co-Agents, the Facility Agents, the Purchasers and the XX Xxxxx may conclusively rely until such time as the Administrative Agent shall receive from such Person a revised certificate meeting the requirements of this clause (d)(i)) and (ii) a copy of such Person’s By-laws or, in the case of the Seller, the Limited Liability Company Agreement;
(e) Financing statements (Form UCC-l) in proper form for filing naming (i) the Seller as the debtor/seller and RBC, as Administrative Agent (on behalf of the Facility Agents for the benefit of the Purchasers and the XX Xxxxx), as the secured party/purchaser for filing in the State of Delaware, and shall be (ii) each Originator as the debtor/seller, the Seller, as the secured party/purchaser, and RBC, as Administrative Agent (on behalf of the Facility Agents for the benefit of the Purchasers and the XX Xxxxx), as assignee, for filing in full force and effectthe State of Delaware;
5.1.9 there shall have been no material adverse change (f) Executed copies of proper financing statements (Form UCC-2 or UCC-3), necessary under the laws of all appropriate jurisdictions to release all security interests and other rights of any Person in Receivables previously granted by the Company's consolidated business Seller or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documentsany Originator;
5.1.10 (g) Certified copies of requests for information or copies (Form UCC-11) (or a similar search report certified by parties acceptable to the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%Administrative Agent) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on dated a date reasonably near the Closing Date listing all effective financing statements which name the Seller or each Originator as debtor and without regard which, in each case, are filed in jurisdictions in which the filings related to any restriction on each such Person were made pursuant to item (e) above, together with copies of such Liens and financing statements;
(h) Evidence of establishment of the ability Lockboxes, Lockbox Accounts, Depository Accounts, Blocked Local Accounts and the Concentration Account in the name of the Seller and copies of duly executed Blocked Account Agreements in form and substance reasonably satisfactory to the Administrative Agent;
(i) Copies of an Investor agreement or letter signed by American Express Travel Related Services Company, Inc. and First Data, each of which as party to convert Preferred Stock or exercise an agreement with Xxxxxxxx for the Warrants provision of services relating to the processing of credit card payments (each, a “Credit Card Agreement”), acknowledging that such credit card processor will make credit card payments on Receivables to the Concentration Account and agreeing to look first to a Xxxxxxxx account for payment of fees, expenses, chargebacks and other amounts owing to it under its Credit Card Agreement;
(j) An opinion of Xxxxx Xxxxx LLP, as of such date); and
5.1.11 there shall be counsel to the Xxxxxxxx Parties, dated the date hereof, relating to bankruptcy matters, including (i) true sale between each Originator and the Seller, and (ii) no injunction, restraining order or decree substantive consolidation of any nature Xxxxxxxx Party with the Seller;
(k) A favorable opinion or opinions of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits Xxxxx Xxxxx LLP, as special counsel to the consummation Xxxxxxxx Parties (other than the Parent, except with respect to enforceability), each dated the date hereof, relating to (i) limited liability company matters with respect to the Seller, (ii) enforceability of the transactions contemplated herebyTransaction Documents, by (iii) no conflicts with laws or agreements, (iv) no consents, (v) first priority perfected security interest of (A) the Seller’s interest in the Receivables, Related Security and Collections and (B) the Facility Agents’ interest in the Receivable Interest and (vi) such other Transaction Documents matters as the Administrative Agent may reasonably request;
(l) A favorable opinion of Hunton & Xxxxxxxx LLP, as counsel to the Xxxxxxxx Parties, dated the date hereof, relating to (i) corporate or by limited liability company matters (except with respect to the Certificate Seller) and (ii) such other matters as the Administrative Agent may reasonably request;
(m) A favorable opinion or opinions of Designation.Xxxxx Xxxxx Jersey Partnership, as Jersey counsel to the Parent, dated the date hereof, relating to (i) corporate matters and (ii) such other matters as the Administrative Agent may reasonably request;
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company (n) Certificates of authorized officers of each Xxxxxxxx Party as to (i) the truth and correctness in all material respects of the following events as of the date of the Closing:
5.2.1 the representations and warranties in the Transaction Documents and (ii) the absence of any Potential Termination Event or Termination Event;
(o) Executed copies of the Transaction Fee Letters;
(p) Payment to each Investor shall be true Facility Agent, the Administrative Agent and correct the Co-Administrative Agent of all fees payable in all material respects as accordance with the Transaction Fee Letters, and payment of such date as if made on such date (except that rating agency fees and fees of Xxxxxxx and Xxxxxx LLP, counsel to the Administrative Agent and Facility Agents to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as invoiced at least two business days before the closing of that particular date)the Facility;
5.2.2 each Investor shall have complied with or performed all (q) An executed copy of the agreementsPurchase and Contribution Agreement;
(r) A pro forma Monthly Report for the Calculation Period ended June 30, obligations and conditions set forth in this Agreement 2013;
(s) Satisfactory completion of a final agreed-upon procedures report by Protiviti Inc.;
(t) Evidence that are the Parent has received a Rating of “BBB” or higher, (u) For each Purchase Group which includes a Conduit Purchaser (if so required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunctionPurchase Group), restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation rating agency confirmation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate commercial paper rating of Designationsuch Conduit Purchaser’s Commercial Paper;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions 4.1 The obligations of Purchaser under this Agreement are subject to Investors' Obligations the satisfaction, at or before Closing, of all of the Closing. Each ---------------------------------------------------------- Investor's obligations following conditions precedent, unless waived in writing by Purchaser:
4.1.1 the Warranties of Seller and the Group contained in this Agreement or in any statement, Exhibit, Schedule, certificate or document delivered by Seller or a Group Company under this Agreement shall be true, correct and complete on and as of the date when made and at all times prior to effect the Closing, including without limitation its obligation shall be deemed to purchase the Preferred Stock and Warrants be made again at the Closing, are conditioned upon and shall then be true, correct and complete as of the fulfillment or waiver by such Investor of Closing;
4.1.2 each of the following events as Key Employees shall have entered into a Management Service Agreement with the Company prior to the Closing Date on terms mutually agreed by Purchaser and Seller;
4.1.3 a release of all obligations of the Closing Date:
5.1.1 Group Companies related to the representations Wachovia Credit and warranties covenant by Seller to file the pertinent UCC statements within five (5) Business Days of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)Closing;
5.1.2 4.1.4 the Company shall have complied with or performed in all material respects all adopted resolutions to:
(a) approve the Share Sale;
(b) effect the termination of the agreementsStock Option Plan; and
(c) ratify the reduction of the Company’s issued share capital from 167,218 shares of common stock to 1,000 shares of common stock.
4.1.5 Seller shall have adopted such board resolutions, obligations and conditions set forth in shareholders’ resolutions or approvals of Seller as are necessary to approve this Agreement and in the other Transaction Documents that are Documents;
4.1.6 Seller and the Group shall have performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with or performed by the Company on or them before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 4.1.7 the Company shall have obtained the required consents under Schedule 7.8.1 hereof;
4.1.8 there shall not have been a Material Adverse Effect;
4.1.9 Seller shall have delivered to such Investor Purchaser the certificate representing the Sale Shares free and clear of all Encumbrances accompanied by a certificatestock power duly executed in blank;
4.1.10 No temporary restraining order, signed preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint or provision alleging infringement or other violation by, challenging the validity, enforceability or the Group Company’s rights to use and exploit any Company Intellectual Property currently embodied or proposed to be embodied in the Company Products or utilized in any Group Company-designed or modified development tools or design environments shall be in effect.
4.1.11 The Company and PNI shall have provided Purchaser with a certificate executed on behalf of the Company and PNI by each respective party’s Chief Executive Officer and Chief Financial Officer of or Controller to the Companyeffect that, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the ClosingClosing Date, it being understood that such Investor may rely all conditions set forth in this Section 4.1 have been satisfied;
4.1.12 Seller shall have provided Purchaser with a certificate executed on such certificate as though it were a representation and warranty behalf of the Company made hereinSeller by Seller’s Chief Executive Officer and Treasurer to the effect that, as of the Closing Date, all conditions set forth in this Section 4.1 have been satisfied;
5.1.5 the 4.1.13 The Company and PNI shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered provided Purchaser duly executed certificates representing resignations and release of each of the Preferred Stock officers and the Warrants being purchased by such Investor;directors of each company; and
5.1.7 4.1.14 Counsel of the Company shall have executed and delivered to Purchaser an opinion as to (a) the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State validity of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date reduction of the Company's most recent unaudited financial statements contained ’s issued share capital, and (b) the validity and enforceability of the Agreement and the Transaction Documents in the Disclosure Documents;form attached hereto as Exhibit A.
5.1.10 4.2 The obligations of Seller under this Agreement are subject to the Company shall have authorized and reserved for issuance satisfaction, at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion or before Closing, of all of the Preferred Stock and exercise following conditions precedent, unless waived in writing by Seller:
4.2.1 the Warranties of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price Purchaser contained in effect on the Closing Date and without regard to this Agreement or in any restriction on the ability of an Investor to convert Preferred Stock statement, Exhibit, Schedule, certificate or exercise the Warrants as of such date); and
5.1.11 there document delivered by Purchaser under this Agreement shall be no injunctiontrue, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events correct and complete on and as of the date of when made and at all times prior to the Closing:
5.2.1 the representations and warranties of each Investor , shall be true deemed to be made again at the Closing, and shall then be true, correct in all material respects and complete as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of 4.2.2 Purchaser adopting resolutions to authorize the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companythis Agreement; and
5.2.5 each Investor 4.2.3 Purchaser shall have delivered performed, satisfied and complied with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by Purchaser before the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsClosing.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The obligation of each party to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations this Agreement to effect the Closing, including without limitation its obligation Closing shall be subject to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each the other party of the following events as additional conditions or the waiver of the Closing Datefulfillment of such conditions by the party entitled to benefit therefrom:
5.1.1 (i) the other party shall have performed in all material respects the covenants and obligations required to be performed under this Agreement at or prior to the Closing;
(ii) the waiting period (and any extensions thereof) applicable to the consummation of the transactions contemplated by this Agreement and by the USS Stock Purchase Agreement under the HSR Act shall have expired or been terminated;
(iii) the First Closing under, and as defined in, the USS Stock Purchase Agreement shall have occurred;
(iv) the representations and warranties of the Company set forth other party contained in this Agreement and in the other Transaction Documents shall be true and correct in all material respects at and as of the Closing as if made on and as of such date as if made on such date (except that to the extent that any such representation or and warranty by its terms relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular prior date);
5.1.2 (v) the Company Seller shall have complied with or performed in all material respects all of the obligations and agreements, obligations and conditions set forth complied in all respects with all covenants, contained in this Agreement and in the other Transaction Documents that are required Agreement, to be performed and complied with by it at or performed by the Company on or before prior to the Closing;
5.1.3 (vi) the Closing Date Seller and the Purchasers shall occur on a date that is not later than February 10have executed the Escrow Agreement in the form attached hereto as Exhibit A, 2004the Stockholders Agreement, the Right of First Refusal Agreement;
5.1.4 (vii) a letter in the form attached hereto as Exhibit B, addressed to U.S. Trust Company of California, N.A. and dated as of September 7, 2000, shall have been executed by the Seller, U.S. Trust Company of California, N.A. and certain other parties identified therein;
(viii) Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx LLP shall have delivered to such Investor a certificatethe Purchasers two (2) opinions, signed by the Chief Executive Officer and Chief Financial Officer one of which shall be dated as of the Company, certifying that First Closing and the conditions specified in this paragraph 5.1 have been fulfilled other dated as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation addressed to the Purchasers in form and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably substance satisfactory to the Investors confirming that Purchasers;
(ix) all governmental, regulatory and third-party consents or clearances necessary for the Certificate consummation of Designation all of the transactions contemplated by the Documents to which Seller is a party shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, obtained and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there (x) the Seller shall be have provided each Purchaser with a copy of a resolution duly adopted by the Board of Directors of Seller, certified as such by the Seller's Secretary, authorizing the execution of this Agreement and any other agreements arising in connection herewith and the Closing hereunder. The Closing shall occur no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits later than two (2) business days following the consummation satisfaction of the transactions contemplated hereby, by foregoing conditions unless the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect parties hereto shall agree that the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it occur at the Closing by wire transfer of immediately available fundsanother time.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pequot Capital Management Inc/Ct/)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its The City’s obligation to purchase proceed with the Preferred Stock and Warrants at Closing is subject to the Closing, are conditioned upon the Applicant’s fulfillment or waiver by such Investor of each of the following events as of conditions at or prior to the Closing DateClosing:
5.1.1 the a. All representations and warranties of the Company set forth in Applicant shall be true as of the Closing.
b. The Applicant shall have delivered to the City:
(1) Evidence of Good Standing of the Applicant from the Nebraska Secretary of State.
(2) A copy of the current and correct Certificate of Organization and Operating Agreement of the Applicant certified by the members (the “Members”) to be correct;
(3) Certified resolutions of the Members authorizing this Agreement and providing for signature authority.
c. In order to secure the Loan and the Repayment, the Applicant shall have delivered to the City the following:
(1) A guaranty (the “Guaranty”) of Xxxxxx Xxxxxxxx. The Guaranty shall be in the other Transaction Documents form of the attached “Exhibit B”.
(2) A Security Agreement covering the Applicant’s equipment. The Security Agreement shall be true and correct in the form of the attached “Exhibit C”.
d. The Applicant shall in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular datehave performed its obligations, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth covenants contained in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on them, on, or before the Closing;.
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there e. There shall have been no material adverse change in the Company's consolidated business operation or financial condition since the date status of the Company's most recent unaudited financial statements contained in Applicant and the Disclosure Documents;Closing shall constitute the Applicant’s representations that there has been no such material adverse change.
5.1.10 f. In requesting the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) disbursement of the aggregate number of shares of Common Stock issuable upon conversion of all of Loan, the Preferred Stock Applicant is considered to have represented that the above conditions have been satisfied and exercise of all of the Warrants are continuing to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designationsatisfied.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The obligation of each Lender to Investors' Obligations make a Loan on the Closing Date is subject to satisfaction of the following conditions precedent at or substantially simultaneously with the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by making of such Investor of Loan:
(a) The Agent shall have received each of the following events following, each of which shall be originals or facsimiles or Adobe PDFs delivered by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Obligor, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guarantee and Security Agreement in sufficient number as the Agent shall request on behalf of the Lenders;
(ii) a Note executed by the Company in favor of each Lender that has requested a Note at least three Business Days prior to the Closing Date; and
(iii) an executed counterpart of the Agent Fee Letter.
(b) The Agent shall have received:
(i) copies of the resolutions of the board of directors, authorized subcommittee thereof, or other equivalent body of each Obligor authorizing the Transactions to which such Obligor is a party, certified as of the Closing Date by the Secretary or an Assistant Secretary of such Obligor (or in the case of a limited liability company, of its manager);
(ii) a certificate of the Secretary or Assistant Secretary of each Obligor (or in the case of a limited liability company, of its manager) certifying the names and true signatures of the officers of such Obligor authorized to execute, deliver and perform, as applicable, this Agreement and all other Loan Documents to be delivered by such Obligor hereunder;
(iii) the articles or certificate of incorporation or equivalent document of each Obligor as in effect on the Closing Date, certified by the Secretary of State of its state of incorporation or organization as of a recent date;
(iv) the bylaws or equivalent document of each Obligor as in effect on the Closing Date, certified by the Secretary or Assistant Secretary of such Obligor as of the Closing Date:; and
5.1.1 the representations and warranties (v) a certificate of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation good standing or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel equivalent document for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with each Obligor from the Secretary of State of the State of Delaware(or similar, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%applicable Governmental Authority) of the aggregate number its state of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock incorporation or exercise the Warrants organization as of such a recent date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its The obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Lender to make the advance pursuant to Section 2.1 hereof shall be subject to the following events as conditions:
(a) The representations of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents Corporation herein shall be true true, complete and correct in all material respects on the date hereof and on and as of such date the Closing Date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)Closing Date;
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 (b) On the Closing Date shall occur on a date that is not later than February 10Date, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and Loan Documents shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized , assuming due authorization and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, execution by the other Transaction Documents parties thereto, and shall not have been amended or supplemented except as may have been agreed to in writing by the Certificate of Designation.Lender;
5.2 Conditions (c) At or prior to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon Date, the fulfillment or waiver by the Company of Lender shall have received each of the following events as documents:
(i) This Agreement executed by an authorized officer of the date Corporation;
(ii) The Series 2022 Note executed by an authorized officer of the Closing:Corporation;
5.2.1 (iii) A certificate, dated the Closing Date, executed by an authorized officer of the Corporation, to the effect that (A) the representations and warranties of each Investor shall be the Corporation contained in this Agreement are true and correct in all material respects on the date hereof and on and as of such date the Closing Date as if made on such date the Closing Date; (B) the Resolution and this Agreement are in full force and effect and have not been amended or supplemented except that as may have been approved in writing by the Lender; (C) the Corporation is not in default with respect to any of its outstanding obligations; and (D) no litigation is pending or, to the extent that best of their knowledge, threatened in any such representation court to restrain or warranty relates to a particular dateenjoin the execution and delivery of this Agreement or the Series 2022 Note or the levy and collection of the Economic Development Sales and Use Tax or the pledge thereof, such representation or warranty shall be true contesting or affecting the adoption and correct in all respects as validity of that particular date)the Resolution or the authorization, execution and delivery of the Loan Documents, or contesting the powers of the Board of Directors of the Corporation;
5.2.2 each Investor shall have complied with or performed (iv) Certified copies of resolutions of the City and the Corporation authorizing execution, delivery and performance of all of the agreementsLoan Documents and authorizing the borrowing hereunder, obligations along with such certificates of existence, certificates of good standing and conditions set forth in this Agreement that are required other certificates or documents as the Lender may reasonably require to be complied with or performed by such Investor on or before evidence the ClosingCorporation’s authority;
5.2.3 there shall be no injunction, restraining order or decree (v) True copies of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation all organizational documents of the transactions contemplated herebyCorporation, including all amendments, restatements or supplements thereto;
(vi) An opinion of counsel to the Corporation which shall specifically provide that (1) the Corporation is a validly existing non-profit corporation created by the other Transaction Documents or by the Certificate City of Designation;
5.2.4 each Investor shall have executed each Xxxxx pursuant to Chapter 504 of the Transaction Documents Act and (2) the Corporation is duly authorized and empowered to which it is a party execute, deliver and delivered perform the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsLoan Documents.
Appears in 1 contract
Samples: Loan Agreement
Conditions to Closing. 5.1 Conditions 7.1 The following are conditions to Investors' Obligations the completion of the Underwriters’ obligations as contemplated in this Agreement, which conditions shall have been fulfilled by the Company, as applicable, on or prior to the Closing Time, other than as may be waived in writing in whole or in part by the Underwriters:
(a) the board of directors of the Company will have authorized and approved the Transaction Documents and the Offering and all matters relating to the foregoing;
(b) the Underwriters shall have received a certificate dated the Closing Date, signed by the President and Chief Executive Officer and the Chief Financial Officer of the Company or such other senior officers of the Company as may be acceptable to the Underwriters, acting reasonably, addressed to the Underwriters, with respect to: (i) the constating documents of the Company, (ii) all resolutions of the board of directors of the Company relating to the Offering Documents and the Offering and the transactions contemplated hereby and thereby, and (iii) the incumbency and specimen signatures of signing officers of the Company, in the form of a certificate of incumbency, and such further certificates and other documentation as may be contemplated in this Agreement or as the Underwriters may reasonably require;
(c) the Underwriters shall have received favourable legal opinions addressed to the Underwriters and the Purchasers, in form and substance satisfactory to the Underwriters’ counsel, acting reasonably, each dated the Closing Date, as applicable, from legal counsel to the Company and where appropriate, local counsel in the other applicable jurisdictions, which counsel in turn may rely, as to matters of fact, on certificates of auditors, public officials and officers of the Company, with respect to the following matters:
(i) as to the incorporation and existence of the Company under the federal laws of Canada and as to the Company having the requisite corporate power and capacity to carry on its business as presently carried on and to own, lease and operate its properties and assets as described in the Public Disclosure Documents (including, but not limited to, the Material Properties);
(ii) as to the Company being a “reporting issuer” not on the list of defaulting reporting issuers maintained in the Reporting Jurisdictions in which sales of Subscription Receipts are made;
(iii) as to the authorized and issued capital of the Company;
(iv) as to the corporate power and capacity of the Company to enter into and to carry out its obligations under the Offering Documents;
(v) all necessary corporate action has been taken by the Company to authorize the execution and delivery of the Offering Documents as well as the performance of its obligations thereunder and hereunder;
(vi) the Offering Documents have been duly executed and delivered by the Company, and constitute legal, valid and binding obligations of the Company enforceable against it in accordance with their respective terms;
(vii) the execution and delivery of the Offering Documents and the performance by the Company of its obligations hereunder and thereunder does not and will not result in a breach of, or constitute a default under, and does not and will not create a state of facts which, after notice or lapse of time or both, will result in a breach of or constitute a default under any term or provision of the constating documents of the Company, Canadian Securities Laws, or the Act;
(viii) the Subscription Receipts have been duly and validly created and issued pursuant to the Subscription Receipt Agreement;
(ix) the Common Shares issuable upon exchange of the Subscription Receipts have been validly authorized and allotted for issuance and, upon the exchange of the Subscription Receipts in accordance with the terms of the Subscription Receipt Agreement, the Common Shares will be validly issued as fully paid and non-assessable Common Shares;
(x) the issuance and sale by the Company of the Subscription Receipts to the Purchasers resident in the Selling Jurisdictions in accordance with the terms of this Agreement are exempt from the prospectus requirements of Canadian Securities Laws and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws to permit such issuance and sale; it being noted, however, that the Company is required to file or cause to be filed with the applicable Securities Regulators, a report on Form 45-106F1 prepared and executed pursuant to NI 45-106, and, if applicable, a report on Form 72-503F prepared and executed pursuant to Ontario Securities Commission Rule 72-503 – Distributions Outside Canada, together with the prescribed filing fee, within ten days of the Closing Date;
(xi) the issuance and delivery by the Company of the Common Shares upon the due exchange of the Subscription Receipts in accordance with the terms of this Agreement and in accordance with the terms of the Subscription Receipt Agreement, will be exempt from the prospectus requirements of Canadian Securities Laws in the Selling Jurisdictions and no prospectus or other documents are required to be filed, proceedings taken or approvals, permits, consents or authorizations obtained under Canadian Securities Laws to permit such issuance and delivery;
(xii) the first trade in the Subscription Receipts and the Common Shares issued upon exchange of the Subscription Receipts is exempt from or is not subject to, the prospectus requirements of the Canadian Securities Laws, and no prospectus is required nor are other documents required to be filed, proceedings taken, or approvals, permits, consents, orders or authorizations of regulatory authorities under Canadian Securities Laws required to be obtained under Canadian Securities Laws (other than such as have been filed or obtained) to permit such trade through registrants registered under Canadian Securities Laws who have complied with such Canadian Securities Laws or in circumstances in which there is an exemption from the registration requirements of such Canadian Securities Laws, provided that:
i) the Company is, and has been, a reporting issuer in a jurisdiction of Canada for the four months immediately preceding the trade;
ii) at the Closing. Each ---------------------------------------------------------- Investor's obligations time of the trade, at least four months have elapsed from the Closing Date;
iii) the certificates representing the Subscription Receipts and the underlying Common Shares, if any, carried a legend in the form prescribed by section 2.5(2)3.(i) of NI 45-102 stating that, unless permitted under securities legislation, the holder of this security must not trade the security before the date which is four months and one day from the Closing Date;
iv) if the Subscription Receipts or the underlying Common Shares are entered into a direct registration or other electronic book-entry system, or if the purchaser did not directly receive a certificate representing the security, the purchaser received written notice containing the legend restriction notation set out in clause (iii) above;
v) the trade is not a “control distribution”, as such term is defined in NI 45-102;
vi) the trade is not a transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to effect a distribution;
vii) no unusual effort is made to prepare the Closingmarket or to create a demand for the securities that are the subject of the trade;
viii) no extraordinary commission or consideration is paid to a person or company in respect of the trade; and
ix) if the holder is an insider or officer of the Company, including without limitation the holder has no reasonable grounds to believe that the Company is in default of securities legislation;
(xiii) Computershare Trust Company of Canada, at its obligation office in Toronto, Ontario, has been duly appointed by the Company as the registrar and transfer agent of the Common Shares and the subscription receipt agent under the Subscription Receipt Agreement; and
(xiv) such other matters as the Underwriters or their counsel may reasonably request;
(d) the Underwriters shall have received a favourable legal opinion addressed to purchase the Preferred Stock Underwriters, in form and Warrants at substance satisfactory to the ClosingUnderwriters’ counsel, are conditioned upon acting reasonably, dated the fulfillment or waiver by such Investor Closing Date, from local counsel to the Company, which counsel in turn may rely, as to matters of fact, on certificates of public officials (as appropriate), with respect to title matters and ownership interests of each of the following events as of Material Properties;
(e) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, in form and substance satisfactory to the Underwriters’ counsel, acting reasonably, dated the Closing Date, from legal counsel to the Company, which counsel in turn may rely, as to matters of fact, on certificates of public officials and officers of such Material Subsidiary (as appropriate), regarding each Material Subsidiary with respect to the following matters:
5.1.1 (i) as to the representations Material Subsidiary having been incorporated and warranties existing under its jurisdiction of incorporation;
(ii) as to the Material Subsidiary having all requisite corporate power and capacity to carry on business and to own, lease and operate properties and assets; and
(iii) as to the authorized and issued share capital of the Material Subsidiary and to chain of ownership;
(f) if any Subscription Receipts are being sold to U.S. Purchasers pursuant to this Agreement, the Company has caused a favourable legal opinion to be delivered to the Underwriters by Doxxxx & Whxxxxx XLP, as special United States counsel to the Company, in form and substance satisfactory to the Underwriters’ counsel, acting reasonably, dated the Closing Date, to the effect that the sale of such Subscription Receipts to such U.S. Purchasers and the issuance of the Common Shares to such U.S. Purchasers on exchange of the Subscription Receipts is not required to be registered under the U.S. Securities Act, subject to the usual and customary assumptions, limitations and qualifications, it being understood that no opinion will be expressed as to the subsequent resale of any Subscription Receipts or Common Shares;
(g) the Underwriters shall have received a certificate of good standing or similar certificate with respect to the jurisdiction in which each of the Company set forth in this Agreement and in the other Transaction Material Subsidiaries is incorporated;
(h) the Company will have caused the Subscription Receipt Agent to deliver a certificate as to its appointment as the subscription receipt agent with respect to the Subscription Receipts;
(i) the Company will have caused its registrar and transfer agent to deliver a certificate as to its appointment as the transfer agent with respect to the Common Shares and the number of issued and outstanding Common Shares;
(j) each of the Offering Documents shall be true have been executed and correct delivered by the parties thereto in all material respects as of such date as if made on such date (except that form and substance satisfactory to the extent that any such representation or warranty relates to a particular dateUnderwriters and its counsel, such representation or warranty shall be true and correct in all respects as of that particular date)acting reasonably;
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 (k) the Company shall have delivered to such Investor a certificate, signed the Underwriters the executed lock-up agreements contemplated by Section 4.1(m) hereof; and
(l) the Offering will have been conditionally approved by the Chief Executive Officer TSX and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company Underwriters shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered received evidence reasonably satisfactory to the Investors confirming Underwriters that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate actionapprovals, shall have been duly filed with the Secretary of State consents and acceptances of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants appropriate regulatory authorities required to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver obtained by the Company of each of in order to complete the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if Offering have been made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsobtained.
Appears in 1 contract
Samples: Underwriting Agreement (Americas Gold & Silver Corp)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's The several obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Underwriters hereunder are subject to the following events as conditions:
(a) No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of the Underwriting Agreement and prior to the Closing Date:, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
5.1.1 (c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (b) above and to the effect that the representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents shall be are true and correct in all material respects as of such date as if made on such date (except the Closing Date and that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have has complied with or performed in all material respects all of the agreements, agreements and satisfied all of the obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required on its part to be complied with performed or performed by the Company satisfied on or before the Closing;Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
5.1.3 (d) The Manager shall have received on the Closing Date shall occur on a date that is not later than February 10opinions of Piper & Marbury, 2004;
5.1.4 the Company shall have delivered Maryland counsel to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the ClosingXxxxx X. Xxxxxx, it being understood that such Investor may rely on such certificate as though it were a representation Esq., Vice President and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel General Counsel--Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated as of such datethe Closing Date, in substantially to the form effect set forth on Exhibit 5.1.5 hereto;
5.1.6 in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State laws of the State of DelawareCalifornia and the federal law of the United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & Marbury, and Xxxxx Xxxx & Xxxxxxxx may rely, as to matters governed by laws other than the laws of the State of New York and the federal law of the United States of America, on an opinion of Piper & Marbury, in each case so long as such opinion shall be dated the Closing Date and in form and substance satisfactory to the Manager, and shall be in full force and effect;expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
5.1.9 there (e) The Manager shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect received on the Closing Date and without regard to any restriction on an opinion of special counsel for the ability Underwriters (the selection of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there whom shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, approved by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect ), dated the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that Date, to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions effect set forth in this Agreement that are required paragraphs (ii) and (iii) [and (v) and (vi)](8) in Exhibit A and paragraphs (i) through (vii) in Exhibit C. In giving such opinion, such counsel may rely, as to matters governed by laws other than the federal law of the United States of America, on an opinion or opinions of local counsel satisfactory to the Manager, so long as each such opinion shall be dated the Closing Date and in form and substance satisfactory to the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters. _________ (8) References to be complied with or performed by such Investor included if the Offered Securities are convertible.
(f) The Manager shall have received on or before the Closing;
5.2.3 there shall be no injunctionClosing Date a letter, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is dated the Closing Date, in effect that restrains or prohibits form and substance satisfactory to the consummation Manager, from the Company's independent public accountants, containing statements and information of the transactions contemplated hereby, type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each Prospectus. [The several obligations of the Transaction Documents Underwriters to which it is a party and delivered the same purchase Additional Securities hereunder are subject to delivery to the Company; and
5.2.5 each Investor Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall have delivered reasonably request relating to the Company issuance of the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsAdditional Securities.](9) _________ (9) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Debt Underwriting Agreement (Sunamerica Capital Trust Iv)
Conditions to Closing. 5.1 Conditions The obligations of the Parties hereunder to Investors' Obligations at complete the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, Transaction are conditioned upon on the fulfillment or waiver by such Investor of each occurrence of the following events as of the Closing Datefollowing, without limitation:
5.1.1 10.1 The transactions contemplated hereby shall have been approved by the representations and warranties Board of Directors of Buyer.
10.2 Any required consent to the Transaction shall have been obtained.
10.3 All encumbrances relating to the assets of the Company set forth in this Agreement and in the other Transaction Documents shall be true satisfied, terminated, and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed discharged by the Company on or before prior to the Closing Date, and evidence reasonably satisfactory to Buyer and its counsel of the satisfaction, termination, and discharge shall be delivered to Buyer at or prior to the Closing;.
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 10.4 All indebtedness of the Company shall have delivered been repaid-in-full.
10.5 Buyer shall have arranged to such Investor a certificateits satisfaction for key employees of the Company to become employees of Buyer or its designee/remain employees of the Company following the Closing.
10.6 Buyer shall have completed, signed by the Chief Executive Officer and Chief Financial Officer in Buyer’s sole discretion, its due diligence review of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;.
5.1.5 the 10.7 The Company shall have delivered audited financials to such Investor an opinion Buyer in accordance with generally accepted accounting principles in the United States (“GAAP”).
10.8 The absence of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no any material adverse change in the Company's consolidated business business, assets, condition (financial or financial condition since the date otherwise), results of operations, cash flows or properties of the Company's most recent unaudited financial statements contained Company and its subsidiaries, taken as a whole.
10.9 Buyer shall have entered into an employment agreement with key employees (including Hxxx Xxxxxx and Cxxxx Xxxxxx), upon terms mutually agreeable to the Parties and the key employees.
10.10 The key employees shall have entered into the Non-Competition Agreement prohibiting each from competing with the Company in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants market areas now served by or contemplated to be issued at served by the Closing (such number Company.
10.11 Anything else reasonably contemplated by Buyer to be determined using delivered in order to consummate the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationTransaction.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's 2.1 The Company’s obligations to effect sell the ClosingSecurities at each Closing is subject to the fulfillment to its satisfaction on or prior to the Closing Date of the conditions set forth in Article V of the Securities Purchase Agreement, including without limitation its and, with respect to the initial Closing only, the Company shall have received the Initial Closing Payment.
2.2 The obligation of the Purchaser to purchase the Preferred Stock and Warrants Securities at the Closing, are conditioned upon each Closing is subject to the fulfillment to its satisfaction on or waiver by prior to such Investor Closing Date of each of the following events as conditions, each of which may be waived by the Closing DatePurchaser:
5.1.1 the representations and warranties of the Company (a) Each condition set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all Article IV of the agreementsSecurities Purchase Agreement (provided, obligations and however, the Purchaser hereby waives the conditions set forth in this Agreement Section 4.4, Section 4.5 and in the other Transaction Documents Section 4.7, or acknowledges that are required to be complied with or performed by the Company on or before the Closingsuch conditions have been previously satisfied);
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the (b) The Company shall have executed and delivered the Registration Rights Agreementfollowing agreements and documents as of the date hereof:
(i) the Second Amendment to Escrow Agreement in the form of Exhibit A attached hereto;
5.1.8 (ii) the Company shall have delivered evidence reasonably satisfactory Second Amendment to Stock Pledge and Escrow Agreement in the Investors confirming that the Certificate form of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effectExhibit B attached hereto;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date (iii) a certificate of an officer of the Company's most recent unaudited financial statements contained , dated such Closing Date, certifying (i) the fulfillment of the conditions specified in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%Section 2.2(b)(i) of this Amendment, (ii) the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock Board resolutions approving this Agreement and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by (iii) the other Transaction Documents or by articles of incorporation and bylaws of the Certificate Company; (iv) the names of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by each officer and director of the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date Closing Date; and (v) such other matters as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty Purchaser shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companyreasonably request; and
5.2.5 each Investor shall have delivered to (iv) an Additional Acquired Note in the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer principal amount of immediately available funds$500,000.
Appears in 1 contract
Samples: Securities Purchase Agreement (Amacore Group, Inc.)
Conditions to Closing. 5.1 8.1 F5 Finishes Closing Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its F5 Finishes’ obligation to purchase close the Preferred Stock and Warrants at Transaction is subject to the Closing, are conditioned upon the fulfillment or waiver by such Investor satisfaction of each of the following events as of conditions (the “F5 Finishes Closing DateConditions”) at or prior to Closing:
5.1.1 the (a) Shareholder’s representations and warranties of the Company set forth in this Agreement and Article 4, as qualified or limited by any exceptions in the other Transaction Documents shall be Schedules to Article 4, are true and correct in all material respects as of such date on the Closing Date as if made on such date at and as of Closing (except other than representations and warranties that to the extent that any such representation or warranty relates to address matters as of a particular certain date, such representation or warranty shall be which were true and correct in all respects as of that particular date);
5.1.2 (b) Shareholder has executed and delivered all of the Company shall have documents and instruments that he is required to execute and deliver or enter into prior to or at Closing, and has performed, complied with or performed satisfied in all material respects all of the agreementsother obligations, obligations agreements and conditions set forth in under this Agreement and in the other Transaction Documents that are he is required to be complied perform, comply with or performed by the Company on satisfy at or before the prior to Closing;
5.1.3 the Closing Date shall occur (c) each Notice or filing listed on a date that Schedule 4.5 has been duly given or made, and each Consent or Permit listed on Schedule 4.5 has been obtained and is not later than February 10, 2004in full force;
5.1.4 (d) F5 Finishes and Shareholder have agreed on the Company shall have delivered to such Investor a certificateFinancial Statements and the Interim Financial Statements;
(e) the Company’s adjusted earnings before interest, signed by taxes, depreciation and amortization for the Chief Executive Officer and Chief Financial Officer 12-month period ended December 31, 2018 was $2,226,671;
(f) consistent with Section 8.1(e), above, after Xxxxxx, LLP completes its audit of the Company, certifying that F5 Finishes is satisfied with the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made hereinCompany’s Financial Statements;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been (g) no material adverse change in the Company's consolidated business ’s assets, financial condition, operations, operating results or financial condition prospects has occurred since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documentsthis Agreement;
5.1.10 (h) no Suit has been initiated or Threatened since the date of this Agreement that challenges or seeks damages or other relief in connection with the Transaction or that could have the effect of preventing, delaying, making illegal or otherwise interfering with the Transaction;
(i) the Registration Statement has been declared effective;
(j) F5 Finishes has approved the pricing and other terms of the IPO;
(k) the actual IPO Share Price of the F5 Finishes Stock is at least seventy percent (70%) of the Baseline IPO Share Price;
(l) the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants cash as of such date)Closing in an amount not less than $200,000; and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation (m) closing of the transactions contemplated hereby, by other combination agreements with the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each Combining Companies and closing of the following events as IPO have both taken place concurrently with the closing of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that this Agreement. F5 Finishes may waive any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth condition specified in this Agreement that are required to be complied with or performed Section 8.1 by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have written waiver delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it Shareholder at the Closing by wire transfer of immediately available fundsany time prior to or at Closing.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The effectiveness of this Agreement is subject to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each satisfaction of the following events conditions: The Agent shall have received the following, each dated as of the Closing Date (unless otherwise indicated), and each in form and substance satisfactory to the Agent:
(a) receipt of an executed counterpart of this Agreement;
(b) if requested by any Lender, receipt of a duly executed Note for such Lender;
(c) receipt of opinions of (i) XxXxxx Law Firm, P.A., counsel for the Borrower and (ii) the General Counsel or an Assistant General Counsel to the Borrower, substantially in the forms of Exhibit B-1 and B-2, hereto, respectively, and covering such additional matters relating to the transactions contemplated hereby as the Lenders may reasonably request;
(d) receipt of a certificate signed by a principal financial or accounting officer of the Borrower, to the effect that (i) no Default or Event of Default has occurred and is continuing as of the Closing Date:
5.1.1 , (ii) since December 31, 2004, there has been no change or changes in the business, assets, liabilities, operations, condition (financial or otherwise) or prospects of the Borrower and its subsidiaries, taken as a whole, or in the facts and information regarding such entities which alone, or in the aggregate, could reasonably be expected to have a Material Adverse Effect and (iii) the representations and warranties of the Company set forth Borrower contained in this Agreement and in the other Transaction Documents shall be Article IV hereof are true and correct in all material respects as of such the date as if made on such date hereof;
(except that e) receipt of all documents which the Agent and the Lenders may reasonably request relating to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all existence of the agreementsBorrower, obligations the corporate authority for and conditions set forth in the validity of this Agreement and in the other Transaction Loan Documents that are required and any other matters relevant hereto, all in form and substance satisfactory to be complied with or performed by the Company on or before Agent and the Closing;
5.1.3 Lenders, including without limitation a certificate of incumbency of the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificateBorrower, signed by the Chief Executive Officer and Chief Financial Officer Secretary or an Assistant Secretary of the CompanyBorrower, certifying that as to the conditions specified in this paragraph 5.1 have been fulfilled as names, true signatures and incumbency of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty officer or officers of the Company made herein;
5.1.5 Borrower authorized to execute and deliver the Company shall have delivered Loan Documents to such Investor an opinion which the Borrower is a party and certified copies of counsel for the Companyfollowing items: (i) the Borrower’s Articles of Incorporation, dated as (ii) the Borrower’s By-laws, (iii) a certificate of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of DelawareSouth Carolina as to the existence of the Borrower as a South Carolina corporation, (iv) a certificate of the Secretary of State of the State of North Carolina as to the good standing of the Borrower in North Carolina, and (v) the action taken by the Board of Directors of the Borrower authorizing the Borrower’s execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Borrower is a party;
(f) receipt by the Agent of evidence that the Borrower shall be have irrevocably terminated all commitments and indefeasibly paid in full force and effectall amounts due under the Existing Credit Agreement;
5.1.9 there shall have been no material adverse change in (g) receipt by the Company's consolidated business or financial condition since Agent (for its own account and the date account of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%Lenders, as applicable) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants fees required to be issued at the received in connection with this Agreement on or before such Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)Date; and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as (h) receipt of such date other documents as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock Agent and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsLenders may reasonably request.
Appears in 1 contract
Samples: Five Year Credit Agreement (South Carolina Electric & Gas Co)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's The several obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Underwriters hereunder are subject to the following events as conditions:
(a) No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
5.1.1 (c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (b) above and to the effect that the representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents shall be are true and correct in all material respects as of such date as if made on such date (except the Closing Date and that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true Trust and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, agreements and satisfied all of the obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required on their part to be complied with performed or performed by the Company satisfied on or before the Closing;Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
5.1.3 (d) The Manager shall have received on the Closing Date shall occur on a date that is not later than February 10opinions of Piper & Marbury, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of Maryland counsel for the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel--Corporate Affairs for the Company, Xxxxx Xxxx & Xxxxxxxx, special counsel for the Company, and Xxxxxxxx, Xxxxxx & Finger, Delaware counsel for the Trust, each dated as of such datethe Closing Date, in substantially to the form effect set forth on Exhibit 5.1.5 hereto;
5.1.6 in Exhibits A, B, C and D, respectively. In giving such opinion, (i) Xx. Xxxxxx may rely, as to matters governed by laws other than the Company shall have delivered duly executed certificates representing laws of the Preferred Stock State of California and the Warrants being purchased federal law of the United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx, Xxxxx & Xxxxxxx and Xxxxxxxx, Xxxxxx & Finger, (ii) Xxxxx Xxxx & Xxxxxxxx may rely, as to matters governed by such Investor;
5.1.7 laws other than the Company shall have executed and delivered laws of the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of New York and the federal law of the United States of America, on an opinion or opinions of Piper & Marbury and Xxxxxxxx, Xxxxxx & Finger and (iii) Xxxxxxxx, Xxxxxx & Finger may rely, as to matters governed by laws other than the State of Delaware, or an opinion or opinions of Piper & Marbury and Xxxxx Xxxx & Xxxxxxxx, in each case so long as such opinion shall be dated the Closing Date and in form and substance satisfactory to the Manager, and shall be in full force and effect;expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
5.1.9 there (e) The Manager shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect received on the Closing Date an opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company), dated the Closing Date, to the effect set forth in paragraphs (i) and without regard (ii) in Exhibit A, paragraphs (i) through (iv) and (vi) through (viii) in Exhibit C and paragraphs (i) through (v) in Exhibit D. In giving such opinion, such counsel may rely, as to any restriction matters governed by laws other than the federal law of the United States of America, on an opinion or opinions of local counsel satisfactory to the Manager, so long as each such opinion shall be dated the Closing Date and in form and substance satisfactory to the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(f) The Manager shall have received on the ability Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Manager, from the Company's independent public accountants, containing statements and information of an Investor the type ordinarily included in accountants' "comfort letters" to convert Preferred Stock underwriters with respect to the financial statements and certain financial information contained in or exercise incorporated by reference into the Warrants Prospectus.
(g) The Manager shall have received a certificate from The Bank of New York and The Bank of New York (Delaware), as Trustees, dated the Closing Date and signed by appropriate officers of such date); andTrustees, containing statements and information substantially in the form of Appendix E hereto.
5.1.11 there (h) The Preferred Securities of the Trust shall be have been approved for listing on the New York Stock Exchange upon notice of issuance.
(i) On the Closing Date, (i) the Preferred Securities shall have a rating of at least "Baa2" from Xxxxx'x Investors Service, Inc. and at least "A-" from Standard & Poor's Corporation as evidenced in a letter from such rating agencies or by other evidence satisfactory to the Manager and (ii) no injunction, restraining order securities of the Company or decree of any nature of any court or Government Authority of competent jurisdiction other SunAmerica Capital Trust that is (x) organized in effect that restrains or prohibits substantially the consummation of form of, and for substantially the transactions contemplated herebysame purpose as, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver Trust and (y) whose common equity capital is wholly-owned by the Company of or its subsidiaries (each a "SunAmerica Trust") shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization. The several obligations of the following events Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 4 as such Manager shall reasonably request relating to the issuance of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsAdditional Securities.
Appears in 1 contract
Samples: Preferred Stock Underwriting Agreement (Sunamerica Capital Trust Iv)
Conditions to Closing. 5.1 Conditions to InvestorsPurchasers' Obligations at the Closing. Each ---------------------------------------------------------- InvestorPurchaser's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock a Debenture and Warrants Warrant at the Closing, are conditioned upon the fulfillment or waiver by such Investor Purchaser of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the such Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10March 29, 20042002;
5.1.4 the Company shall have delivered to such Investor Purchaser a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor Purchaser may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion Purchaser one or more opinions of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 heretoand substance satisfactory to such Purchaser;
5.1.6 the Company shall have executed and delivered duly executed certificates representing the Preferred Stock Debenture and the Warrants Warrant being purchased by such InvestorPurchaser;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have executed and delivered evidence reasonably satisfactory to the Investors confirming that Deed of Trust and recorded the Certificate Deed of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed Trust with the Secretary of State of the State of Delaware, and shall be in full force and effectappropriate Governmental Authority;
5.1.9 the Common Stock shall be quoted and traded on the Nasdaq National Market System;
5.1.10 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited audited financial statements contained in the Disclosure Documents;
5.1.10 5.1.11 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock Investment Debentures and exercise of all of the Investment Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor a Purchaser or Infineon to convert Preferred Stock Investment Debentures or exercise the Investment Warrants as of such date); and;
5.1.11 5.1.12 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the Purchaser Documents;
5.1.13 each of the Company's executive officers shall have executed and delivered a letter agreement addressed to such Purchaser regarding such person's agreement to refrain from selling such person's holdings of Common Stock consistent with the Company's covenant contained in Section 4.13 hereof;
5.1.14 the Company shall have delivered to such Purchaser evidence reasonably satisfactory to such Purchaser that no adverse environmental conditions affect the Real Property, including, without limitation that the Real Property does not contain any underground storage tanks, asbestos, polychlorinated biphenyls, petroleum products or any other Transaction Documents toxic or by hazardous wastes or materials; and
5.1.15 the Certificate Company shall have furnished such Purchaser with (i) a current survey of Designationthe Real Property certified to such Purchaser and in form and substance reasonably satisfactory to such Purchaser, (ii) written evidence reasonably satisfactory to such Purchaser that the Company is not in default under any agreements recorded against the Real Property and confirming the extent of the Company's obligations thereunder and (iii) written evidence reasonably satisfactory to such Purchaser that the improvements constructed on Real Property comply with all applicable zoning and use ordinances and restrictions.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the ClosingClosing Date:
5.2.1 the representations and warranties of each Investor Purchaser shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor Purchaser shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor each Purchaser on or before the such Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents or by the Certificate of DesignationPurchaser Documents;
5.2.4 each Investor the Conversion Price (as defined in the Debentures) shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companynot be less than four dollars ($4.00); and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsDate shall occur on a date that is not later than March 29, 2002.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ramtron International Corp)
Conditions to Closing. 5.1 Conditions This Agreement shall not become effective (and the Lenders shall not be required to Investors' Obligations at make the Closing. Each ---------------------------------------------------------- Investor's obligations initial Loans or issue any Letters of Credit) unless the Closing Date has occurred on or prior to effect August 31, 2005 and the Closing, including without limitation its obligation Company has furnished to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of Administrative Agent each of the following events as following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(1) Copies of the Certificate of Incorporation (or other comparable constituent document) of each Initial Loan Party together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of organization;
(2) Copies, certified by the Secretary or Assistant Secretary of each Initial Loan Party of its By-Laws (or other comparable governing document) and of its Board of Directors' resolutions (and required resolutions of other bodies) authorizing the execution of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Initial Loan Party which shall identify by name and title and bear the signature of the officers of such Initial Loan Party authorized to sign the Loan Documents (and, in the case of the Company, to make borrowings hereunder), upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party;
(4) A certificate, in form and substance satisfactory to the Administrative Agent, signed by the chief financial officer or treasurer of the Company, stating that on the Closing Date:
5.1.1 Date (both before and after giving effect to the Loans made and/or Letters of Credit issued thereon) all the representations and warranties of the Company set forth in this Agreement are true and correct in the other Transaction Documents all material respects (unless such representation and warranty is made as of a specific date, in which case, such representation and warranty shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation date) and no Default or warranty relates to a particular date, such representation or warranty shall be true Unmatured Default has occurred and correct in all respects as of that particular date)is continuing;
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements(5) An opening compliance certificate, obligations and conditions set forth in this Agreement and substantially in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on form of Exhibit H attached hereto and made a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificatepart hereof, signed by the Chief Executive Officer Company's chief financial officer or treasurer, but solely demonstrating compliance with the provisions of Section 7.4 as of the end of the fiscal quarter ending May 27, 2005;
(6) Evidence satisfactory to the Administrative Agent that the Prior Credit Agreement has terminated and Chief Financial that all obligations, indebtedness and liabilities outstanding under the Prior Credit Agreement have been repaid in full and all liens (if any) granted thereunder shall have been released, or the Company has arranged for such termination, repayment and release from the proceeds of the initial Loans hereunder (in either case, as documented in a payoff letter in form and substance reasonably satisfactory to the Administrative Agent);
(7) Written money transfer instructions reasonably requested by the Administrative Agent, addressed to the Administrative Agent and signed by an Authorized Officer;
(8) Evidence satisfactory to the Administrative Agent that the Company has paid to the Administrative Agent and the Arranger the fees agreed to in the fee letter described in Section 2.14(C)(ii);
(9) The written opinions of the Company's and the Subsidiary Guarantors' U.S. counsel in the forms of the opinions attached hereto as Exhibit E, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent and its counsel;
(10) The written opinion of French counsel to Steelcase SAS, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent and its counsel;
(11) A certificate, in form and substance satisfactory to the Administrative Agent, signed by the chief financial officer or treasurer of the Company, demonstrating that on the Closing Date, (i) the total assets of all Non-Obligor Subsidiaries do not exceed thirty percent (30%) of the Company's Consolidated Assets, determined as of February 25, 2005, and (ii) the total sales of all Non-Obligor Subsidiaries do not exceed thirty percent (30%) of the Company's Consolidated Sales, determined as of February 25, 2005 (it being understood and agreed, however, that, in making such determination, (a) twenty percent (20%) of the total assets and total sales of Steelcase SAS shall be deemed to constitute total assets and total sales of a Non-Obligor Subsidiary and (b) total assets and total sales of each Non-Obligor Subsidiary and Steelcase SAS shall be determined only by reference to the total assets and total sales of such Non-Obligor Subsidiary or Steelcase SAS (and not on a consolidated basis for such Non-Obligor Subsidiary or Steelcase SAS) and shall exclude all offsetting debits and credits between such Non-Obligor Subsidiary or Steelcase SAS and its respective consolidated Subsidiaries and all equity investments in such consolidated Subsidiaries);
(12) A certificate, in form and substance satisfactory to the Administrative Agent, signed by an Authorized Officer of the Company, certifying that (a) identifying and describing the conditions specified in this paragraph 5.1 have been fulfilled ownership of the Significant Subsidiaries of the Company as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation Closing Date and warranty (b) identifying and attaching the Investment Policy of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)Date; and
5.1.11 there (13) Such other documents as the Administrative Agent or any Lender or its counsel may have reasonably requested with at least two (2) Business Days' prior notice (unless the Company otherwise consents, such consent not to be unreasonably withheld or delayed), including, without limitation, the Guarantees and each other instrument, document or agreement reflected on the List of Closing Documents attached as Exhibit F to this Agreement. Without in any way limiting the foregoing, this Agreement shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, not become effective unless and until it has been executed by the other Transaction Documents or by Company, the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock Administrative Agent and the Warrants being purchases Lenders, and each such party has notified the Administrative Agent by facsimile or electronic transmission that it at the Closing by wire transfer of immediately available fundshas taken such action.
Appears in 1 contract
Samples: Credit Agreement (Steelcase Inc)
Conditions to Closing. 5.1 The Company's Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's The obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Company ----------------------------------- under this Agreement shall be subject to the following events (any of which may be waived by the Company in whole or in part):
(a) A definitive agreement between the Company and Pacific evidencing the terms and conditions of the Pacific Transaction shall have been unanimously approved by the disinterested directors of the Company.
(b) Each of the representations and warranties of TVF, Third Capital, Xxxxxxx and Xxxxx shall be true and accurate in all material respects as of the Closing Date:and each of them shall have performed their respective covenants hereunder.
5.1.1 (c) No injunction, judgment, order, decree or ruling shall have been entered in any action, suit or proceeding pending before any court or agency of any federal, state or local jurisdiction that prevents the performance of the Parties' obligations hereunder, including but not limited to the purchase of the Shares contemplated by this Agreement.
5.2 TVF's, Xxxxxxx'x and Xxxxx' Conditions to Closing. The obligations of ------------------------------------------------- TVF, Third Capital, Xxxxxxx and Xxxxx under this Agreement shall be subject to the following (any of which may be waived in whole or in part):
(a) A definitive agreement between the Company and Pacific evidencing the terms and conditions of the Pacific Transaction shall have been unanimously approved by the disinterested directors of the Company.
(b) Each of the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct accurate as of the Closing in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with performed its covenants hereunder.
(c) No injunction, judgment, order, decree or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation ruling shall have been duly authorized and adopted by all requisite corporate entered in any action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business suit or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of proceeding pending before any court or Government Authority agency of competent any federal, state or local jurisdiction that is in effect that restrains or prohibits prevents the consummation performance of the transactions contemplated herebyParties' obligations hereunder, by including but not limited to the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each purchase of the following events as of Shares contemplated by this Agreement; provided, however, that this shall not apply to any action, suit or proceeding initiated by any Party (other than the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as Company) or any of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsParty's Affiliates.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions a. It shall be a condition to Investors' Obligations at the Closing. Each ---------------------------------------------------------- InvestorCompany's obligations to effect the Closing, including without limitation its obligation to close the purchase of the Preferred Stock and Warrants at Shares from the Closing, are conditioned upon the fulfillment or waiver by such Investor of Seller that each of the following events as conditions shall have first been satisfied, any one or more of which may be waived by the Company in its discretion:
i. the Company's Board of Directors shall have approved the purchase of the Shares and this Agreement;
ii. no action or proceedings shall have been instituted or, to the knowledge, information and belief of the Company, shall have been threatened before a court or other government body or by any public authority to restrain or prohibit any of the transactions contemplated by this Agreement and an authorized officer of the Company shall have delivered to the Seller a certificate, dated the Closing Date:, to such effect;
5.1.1 iii. the representations and warranties of made by the Company set forth Seller in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such the date as if made on such date (except that hereof and the Closing Date, and Seller shall deliver to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 at the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed dated the Closing Date, to such effect.
b. It shall be a condition to the Seller's obligation to close the sale of the Shares to the Company that each of the following conditions shall have first been satisfied, any one or more of which may be waived by the Chief Executive Officer and Chief Financial Officer Seller in his discretion:
i. the Company's Board of Directors shall have approved the purchase of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock Shares and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights consummation of this Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation ii. no action or proceedings shall have been duly authorized instituted or, to the knowledge, information and adopted by all requisite corporate actionbelief of Seller, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any threatened before a court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents government body or by the Certificate of Designation.
5.2 Conditions any public authority to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.restrain or
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Initial Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Initial Closing, including without limitation its obligation to purchase the Preferred Stock a Debenture and Warrants Warrant at the Initial Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Initial Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Initial Closing;
5.1.3 the Initial Closing Date shall occur on a date that is not later than February 10August 19, 20042005;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 subparagraphs 5.1.1, 5.1.2, 5.1.9, 5.1.10, 5.1.11 and 5.1.12 have been fulfilled as of the Initial Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Initial Closing Date, that is in form and substance reasonably acceptable to such date, in substantially the form set forth on Exhibit 5.1.5 heretoInvestor;
5.1.6 the Company shall have delivered to such Investor duly executed certificates representing the Preferred Stock Debenture and the Warrants Warrant being purchased by such InvestorInvestor at the Initial Closing;
5.1.7 the Company shall have executed and delivered to such Investor the Registration H Rights Agreement, the Security Agreement, the Cash Collateral Agreement and the Subordination Agreement (as defined below);
5.1.8 the Company shall have delivered evidence reasonably satisfactory to such Investor a certificate, signed by the Investors confirming that Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Designation shall have been Incorporation and By-Laws of the Company, (ii) resolutions passed by its Board of Directors, or a duly authorized committee thereof, to authorize the transactions contemplated hereby and adopted by all requisite corporate action, shall have been duly filed with the Secretary other Transaction Documents and (iii) resolutions passed by the Board of State Directors of the State of DelawareOperating Subsidiary, or a duly authorized committee thereof, to authorize the transactions contemplated by the Subsidiary Guaranty and the Security Agreement, and shall be in full force certifying that such documents are true and effectcomplete copies of the originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of the Company made herein;
5.1.9 the Company shall have obtained the written agreement of each Key Employee to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.2(g) hereof;
5.1.10 there shall have been occurred no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 5.1.11 the Company shall have authorized and reserved for issuance at least one two hundred and fifty percent (150200%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock Debentures and exercise of all of the Warrants to be issued at the Initial Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an such conversion or exercise), and provided such Investor to convert Preferred Stock or exercise the Warrants as of such date)with reasonable evidence thereof; and
5.1.11 5.1.12 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby or by the other Transaction Documents Documents;
5.1.13 the Operating Subsidiary shall have executed and delivered to such Investor the Subsidiary Guaranty and the Security Agreement;
5.1.14 Xxxxxxx Xxxxx shall have executed and delivered to such Investor a Contingent Guaranty in the form of Exhibit I hereto, and Xxxxxxx Xxxxx and each Related Party shall have executed and delivered to such Investor a Subordination Agreement in the form of Exhibit J hereto (the "Subordination Agreement");
5.1.15 Xxxxxxx Xxxxx and each Related Party shall have terminated all financing statements (or by amended such financing statements) filed with respect to liens on the Certificate assets of Designationthe Company or the Operating Subsidiary so that Xxxxxxx Xxxxx and each Related Party shall have a first lien on the inventory and receivables of the Company and the Operating Subsidiary, and a second lien (subordinated to the first lien of the Investors) on all other assets of the Company and the Operating Subsidiary, and shall have provided such Investor with reasonable evidence thereof; and
5.1.16 counsel for Xxxxxxx Xxxxx shall have delivered to such Investor an opinion, dated as of the Initial Closing Date, in the form attached hereto as Exhibit K hereto and otherwise reasonably acceptable to such Investor.
5.2 Conditions to Company's Obligations at the Initial Closing. The Company's ---------------------------------------------------- obligations to effect the Initial Closing with each Investor are conditioned upon the fulfillment (or waiver by the Company in its sole and absolute discretion) of each of the following events as of the date of the ClosingInitial Closing Date:
5.2.1 the representations and warranties of each such Investor set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.2.2 each such Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Initial Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby or by the other Transaction Documents or by the Certificate of DesignationDocuments;
5.2.4 each such Investor shall have executed each of the Initial Transaction Documents Document to which it is a party and shall have delivered the same to the Company; and
5.2.5 each such Investor shall have delivered tendered to the Company the Purchase Price for Preferred Stock the Debenture and the Warrants Warrant being purchases purchased by it at the Initial Closing by wire transfer of immediately available funds.
5.3 Conditions to Investors' Obligations at the Option Closing. Each Investor's obligations to effect the Option Closing, including without limitation its obligation to purchase a Debenture and Warrant at the Option Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Option Closing Date:
5.3.1 the representations and warranties of the Company set forth in this Agreement and in the Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.3.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the Transaction Documents that are required to be complied with or performed by the Company on or before the Option Closing;
5.3.3 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in subparagraphs 5.3.1, 5.3.2, 5.3.6, 5.3.7 and 5.3.8 have been fulfilled as of the Option Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.3.4 the Company shall have delivered to such Investor an opinion or opinions of counsel for the Company, dated as of the Option Closing Date, in the form attached hereto as Exhibit H hereto and otherwise reasonably acceptable to such Investor;
5.3.5 the Company shall have delivered to such Investor duly executed certificates representing the Option Debenture and the Option Warrant;
5.3.6 there shall have occurred no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent financial statements contained in the Disclosure Documents;
5.3.7 the Company shall have authorized and reserved for issuance at least two hundred percent (200%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Debentures and exercise of all of the Warrants, including the Option Debentures and Option Warrants (such number to be determined without regard to any restriction on such conversion or exercise);
5.3.8 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; and
5.3.9 the Initial Transaction Documents, the Subordination Agreement and (to the extent effective) the Contingent Guaranty shall be in full force and effect and no default, or event or occurrence that with the giving of notice or lapse of time (or both) would constitute a default, under any such agreement or instrument has occurred.
5.4 Conditions to Company's Obligations at the Option Closing. The Company's obligations to effect the Option Closing with each Investor are conditioned upon the fulfillment (or waiver by the Company in its sole and absolute discretion) of each of the following events as of the Option Closing Date:
5.4.1 the representations and warranties of such Investor set forth in this Agreement and in the Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.4.2 such Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Option Closing;
5.4.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the Transaction Documents; and
5.4.4 such Investor shall have tendered to the Company the Purchase Price for the Debenture and the Warrant being purchased by it at the Option Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Securities Purchase Agreement (Vyteris Holdings (Nevada), Inc.)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at The several obligations of the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation Placement Agents under this Agreement to purchase the Preferred Stock Units will be subject to the following conditions:
(a) Subsequent to the date of this Agreement and Warrants at prior to the ClosingClosing Date,
(i) there shall not have occurred any downgrading, are conditioned upon nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the fulfillment or waiver by such Investor of each direction of the following events possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and the Subsidiaries, taken as a whole, from that set forth in the Preliminary Memorandum that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Units on the terms and in the manner contemplated in the Final Memorandum.
(b) You shall have received on the Closing Date a certificate, dated the Closing Date and signed by the Chief Financial Officer and the General Counsel of the Company, to the effect set forth in clause (a)(i) above and to the effect that the representations and warranties contained in this Agreement are true and correct as of the Closing Date:
5.1.1 the representations Date and warranties of that the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have has complied with or performed in all material respects all of the agreements, obligations agreements contained herein and satisfied all of the conditions set forth in this Agreement and in the other Transaction Documents that are required contained herein to be complied with performed or performed by the Company satisfied on or before the Closing;Closing Date. The officer signing and delivering such certificate may rely upon his knowledge as to proceedings threatened.
5.1.3 (c) You shall have received on the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of Xxxxxxx Coie, Washington counsel for to the Company, dated as the Closing Date, to the effect set forth in Exhibit D.
(d) You shall have received on the Closing Date an opinion of such dateXxxxxxxxxx & Xxxxx LLP, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibit E.
(e) You shall have received on the Closing Date opinions of foreign counsel to the Company in Brazil, Argentina, Mexico and Philippines, dated the Closing Date, each to the effect set forth in Exhibit F.
(f) You shall have received on the Closing Date opinions of foreign counsel to the Company in the Cayman Islands, dated the Closing Date, to the effect set forth in Exhibit G.
(g) You shall have received on the Closing Date opinions of foreign counsel to the Company in China, dated the Closing Date, to the effect set forth in Exhibit H.
(h) You shall have received on the Closing Date an opinion of Venture Law Group, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibit I. The opinions of Xxxxxxx Coie, Xxxxxxxxxx Xxxxx, Xxxxx & XxXxxxxx, Bufete Xxxxx y Xxxxxxx, S.C., Xxxxx, Xxxxxxxx Xxxxxx y Xxxxxxxx Xxx, S.C., Pudong Law Office, Xxxxxxxx Xxxxx Xxx Xxxxxxxxx & San Xxxx, M. & X. Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxx & Xxxxxx and Venture Law Group shall be rendered to you at the request of the Company and shall so state therein.
(i) You shall have received on the Closing Date an opinion of Shearman & Sterling, counsel for the Placement Agents, dated the Closing Date, in substantially form and substance satisfactory to you.
(j) You shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form set forth and substance satisfactory to you, from Deloitte & Touche LLP, the Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Final Memorandum.
(k) You shall have received on Exhibit 5.1.5 hereto;each of the date hereof and the Closing Date a letter, dated the date hereof, in form and substance satisfactory to you, from each of KPMG Xxxxxxxx Xxxxx, S.C. Peat Marwick and KPMG Peat Marwick LLP, the Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Final Memorandum.
5.1.6 (l) You shall have received evidence of the contribution by Nextel Investment Company to the Company of its approximately 38% equity interest in Corporacion MobilCom S.A. de C.V. and approximately 3.7% equity interest in Clearnet Communications, Inc., as described in the Final Memorandum.
(m) You shall have delivered duly received executed certificates representing copies of the Preferred Stock Tax Sharing Agreement, the Overhead Services Agreement and the Warrants being purchased by such Investor;
5.1.7 Right of First Opportunity Agreement, each between the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate actionNextel Communications, shall have been duly filed with the Secretary of State of the State of DelawareInc., and the side letter between Motorola, Inc. and the Company; and each such agreement shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationDate.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor n) You shall have complied with received such other certificates and documents as you or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsyour counsel may reasonably request.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions The following shall be conditions precedent to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Date:
5.1.1 (a) This Agreement and the other Transaction Documents shall have become effective in accordance with their respective terms.
(b) All of the terms, covenants, agreements and conditions of this Agreement and the other Transaction Documents to be complied with and performed by the Issuer by the Closing Date shall have been complied with or otherwise waived by the Agent.
(c) Each of the representations and warranties of the Company set forth Issuer made in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of the time of the Closing Date as though made as of such date as if made on such date time (except that to the extent that any such representation they expressly relate to an earlier or warranty relates to later time).
(d) No Funding Termination Event or event that with the giving of notice or lapse of time or both would constitute a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company Funding Termination Event shall have complied with or performed in all material respects all occurred and be continuing.
(e) The Agent shall have received:
(i) Certified copies of the agreements, obligations and conditions set forth in resolutions of the Board of Directors of Issuer approving this Agreement and in the other Transaction Documents that are required to which it is a party and any other documents contemplated thereby and certified copies of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Transaction Documents to which it is a party and any other documents contemplated thereby;
(ii) An Officer’s Certificate of the Issuer, certifying the names and true signatures of the officers authorized to sign this Agreement and the other Transaction Documents and any other documents to be complied with delivered by it hereunder or performed by the Company on or before the Closingthereunder;
5.1.3 (iii) A copy of the Closing Date shall occur on a date that is not later than February 10limited liability agreement of the Issuer, 2004certified by an officer thereof;
5.1.4 (iv) A certificate as to the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer good standing of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with Issuer from the Secretary of State of the State of Delaware, and shall be in full force and effectdated as of a recent date;
5.1.9 there shall have been no material adverse change (v) A favorable opinion of counsel to Issuer, dated the initial Funding Date, in form and substance satisfactory to the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure DocumentsAgent;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%vi) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company Executed copies of each of the following events as of Transaction Documents;
(vii) Evidence that the date of the Closing:
5.2.1 the representations Issuer Collection Account has been established and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that is subject to a control agreement satisfactory to the extent that Agent; and
(viii) Such other documents, instruments, certificates and opinions as the Agent may reasonably request.
(f) No action, suit, proceeding or investigation by or before any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor Governmental Authority shall have complied with been instituted to restrain or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits prohibit the consummation of of, or to invalidate, the transactions contemplated hereby, by the other Transaction Documents this Agreement or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsDocuments.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to InvestorsPurchasers' Obligations at the Initial Closing. Each ---------------------------------------------------------- InvestorPurchaser's obligations to effect at the Initial Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closinga Closing Debenture, are conditioned upon the fulfillment (or waiver by such Investor Purchaser) of each of the following events as of the Initial Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the such Closing;
5.1.3 the Initial Closing Date shall occur on a date that is not later than February 10April 16, 20042002;
5.1.4 the Company shall have delivered to such Investor the Purchaser a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Initial Closing, it being understood that such Investor the Purchaser may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor Purchaser an opinion of counsel for the Company, dated as of such date, in substantially the such form set forth on Exhibit 5.1.5 heretoand covering such matters as shall be acceptable to such Purchaser;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants Debenture being purchased by such InvestorPurchaser;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and Common Stock shall be in full force listed and effectactively traded on the NYSE;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date each of the Company's most recent unaudited financial statements contained in executive officers shall have executed and delivered a letter agreement addressed to such Purchaser regarding such person's agreement to refrain from selling such person's holdings of Common Stock for ninety (90) days from the Disclosure Documents;Initial Closing Date; and
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) received the consent of the aggregate number of shares of Common Stock issuable upon conversion of all of Senior Agent and the Preferred Stock "Required Lenders" (as defined in the Senior Credit Agreement) to the Transaction Documents and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated herebythereby, by such consent to be subject to no conditions other than those which are satisfied prior to the other Transaction Documents or by the Certificate of DesignationInitial Closing Date.
5.2 Conditions to Company's Obligations at the Initial Closing. The Company's ---------------------------------------------------- obligations to effect at the Initial Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the such Closing:
5.2.1 the representations and warranties of each Investor Purchaser set forth in this Agreement shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor Purchaser shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor each Purchaser on or before the such Closing;
5.2.3 there each Purchaser shall be no injunction, restraining order or decree have executed and delivered the Registration Rights Agreement; and
5.2.4 the Company shall have received the consent of any nature of any court or Government Authority of competent jurisdiction that is the Senior Agent and the "Required Lenders" (as defined in effect that restrains or prohibits the consummation of Senior Credit Agreement) to the Transaction Documents and the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsthereby.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its The obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Lender to make the advance pursuant to Section 2.1 hereof shall be subject to the following events as conditions:
(a) The representations of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents Corporation herein shall be true true, complete and correct in all material respects on the date hereof and on and as of such date the Closing Date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)Closing Date;
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 (b) On the Closing Date shall occur on a date that is not later than February 10Date, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and Loan Documents shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized , assuming due authorization and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, execution by the other Transaction Documents parties thereto, and shall not have been amended or supplemented except as may have been agreed to in writing by the Certificate of Designation.Lender;
5.2 Conditions (c) At or prior to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon Date, the fulfillment or waiver by the Company of Lender shall have received each of the following events as documents:
(i) This Agreement executed by an authorized officer of the date Corporation;
(ii) The Series 2022 Note executed by an authorized officer of the Closing:Corporation;
5.2.1 (iii) A certificate, dated the Closing Date, executed by an authorized officer of the Corporation, to the effect that (A) the representations and warranties of each Investor shall be the Corporation contained in this Agreement are true and correct in all material respects on the date hereof and on and as of such date the Closing Date as if made on such date the Closing Date; (B) the Resolution and this Agreement are in full force and effect and have not been amended or supplemented except that as may have been approved in writing by the Lender; (C) the Corporation is not in default with respect to any of its outstanding obligations; and (D) no litigation is pending or, to the extent that best of their knowledge, threatened in any such representation court to restrain or warranty relates to a particular dateenjoin the execution and delivery of this Agreement or the Series 2022 Note or the levy and collection of the Economic Development Sales and Use Tax or the pledge thereof, such representation or warranty shall be true contesting or affecting the adoption and correct in all respects as validity of that particular date)the Resolution or the authorization, execution and delivery of the Loan Documents, or contesting the powers of the Board of Directors of the Corporation;
5.2.2 each Investor shall have complied with or performed (iv) Certified copies of resolutions of the City and the Corporation authorizing execution, delivery and performance of all of the agreementsLoan Documents and authorizing the borrowing hereunder, obligations along with such certificates of existence, certificates of good standing and conditions set forth in this Agreement that are required other certificates or documents as the Lender may reasonably require to be complied with or performed by such Investor on or before evidence the ClosingCorporation’s authority;
5.2.3 there shall be no injunction, restraining order or decree (v) True copies of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation all organizational documents of the transactions contemplated herebyCorporation, including all amendments, restatements or supplements thereto;
(vi) An opinion of counsel which shall specifically provide that (1) the Corporation is a validly existing non-profit corporation created by the other Transaction Documents or by the Certificate City of Designation;
5.2.4 each Investor shall have executed each Xxxxxx pursuant to Chapter 504 of the Transaction Documents Act and (2) the Corporation is duly authorized and empowered to which it is a party execute, deliver and delivered perform the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsLoan Documents.
Appears in 1 contract
Samples: Loan Agreement
Conditions to Closing. 5.1 9.1 Conditions Precedent to Investors' Obligations at of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Closing. Each ---------------------------------------------------------- Investor's obligations transactions contemplated by this Agreement are subject to effect the Closingsatisfaction, including without limitation its obligation on or prior to purchase the Preferred Stock and Warrants at the ClosingClosing Date, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as conditions (any or all of which may be waived by Parent and Merger Sub in whole or in part to the Closing Date:extent permitted by applicable Law):
5.1.1 (a) the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct (without giving effect to any limitations as to materiality) as of the Closing as though made at and as of the Closing, except to the extent such representations and warranties expressly relate to an earlier date (in all material respects which case such representations and warranties shall be true and correct on and as of such date as if made on such date (earlier date), except that where the failure of the representations and warranties to be true and correct, individually or in the aggregate, has not been, and would not reasonably be expected to be material to the extent that any such representation or warranty relates to a particular dateCompany and the Company Subsidiaries, such representation or warranty shall be taken as whole;
(b) the representations and warranties of the Company contained in Sections 5.4, 5.24 and 5.25 are true and correct in all respects as of the Closing, provided that particular date)the Bank Obligation and the Note Obligation may increase to reflect accrued interest on the terms previously disclosed to Parent;
5.1.2 (c) the Company shall have performed and complied with or performed in all material respects with all of the agreements, obligations and conditions set forth agreements required in this Agreement and in the other Transaction Documents that are required to be performed or complied with or performed by it prior to the Company on or before Closing Date, and Parent shall have received copies of such corporate resolutions and other documents evidencing the Closingperformance thereof as Parent may reasonably request;
5.1.3 (d) there shall not have been any Company Material Adverse Effect since the Closing Date shall occur on a date that is not later than February 10, 2004of this Agreement;
5.1.4 (e) there shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the Company consummation of the transactions contemplated hereby;
(f) Parent shall have delivered to such Investor received a certificate, certificate signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying in form and substance reasonably satisfactory to Parent, dated the Closing Date, to the effect that each of the conditions specified above in this paragraph 5.1 Sections 9.1(a)-(c) have been fulfilled as of satisfied in all respects;
(g) Parent shall have received a certification from the Closing, it being understood that such Investor may rely Company on such certificate as though it were a representation and warranty behalf of the Company made herein;Stockholders, dated no more than 30 days prior to the Closing Date and signed by a responsible corporate officer of the Company, that the Company is not, and has not been at any time during the five years preceding the date of such certification, a United States real property holding company, as defined in Section 897(c)(2) of the Code.
5.1.5 (h) the Company shall have delivered obtained all consents, waivers and approvals from Silicon Valley Bank as required to such Investor an opinion effectuate the transactions contemplated by this Agreement;
(i) the Stockholder Consents shall be in full force and effect and shall be valid and effective under Section 228 of counsel for the DGCL;
(j) Parent shall have received written resignations of each of the directors of the Company;
(k) each officer and director of the Company, dated as except Gideon Ben Efraim, and each holder of such dateissued and outstanding shares of Prefexxxx Xxxxx immediately prior to the Effective Time before giving effect to the Preferred Stock Conversion shall have duly entered into, executed and delivered to Parent the release agreement, substantially in substantially the form set forth on attached hereto as Exhibit 5.1.5 heretoC;
5.1.6 (l) the Non-Competition Agreement, substantially in the form attached hereto as Exhibit D, shall have been entered into by Oz Leave, Amir Adler, Ronen Akerman, Roy Kinamon, Sigal Ben-Eliyahu, George Lazxx xxx Xxxal Xxx xxx xx xeaxx 00% xx xhe xxxxxxxxx xx xxx Cxxxxxx xx xxe Closing Date, and such agreements shall remain in full force and effect;
(m) Parent, the Escrow Agent and the Stockholder Representative shall have duly entered into, executed and delivered to the other party thereto the Escrow Agreement, substantially in the form of Exhibit A (with such changes as may be required by the Escrow Agent);
(n) the Go Networks, Inc. 2003 Stock Plan shall have been terminated and each holder of a Company Stock Option shall have either exercised such option or such option shall be cancelled and null and void under its terms or the terms of the plan pursuant to which it was granted. Each Company Warrant shall have been exercised or the holder thereof shall have delivered to the Company an instrument canceling such warrant in form and substance satisfactory to Parent or such warrant shall have expired by its own terms;
(o) the Company shall have delivered duly executed delivered, or caused to be delivered, to Parent certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 of good standing as of a recent date with respect to the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted issued by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, Delaware and shall be for each state in full force and effectwhich the Company is qualified to do business as a foreign corporation;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the (p) The Company shall have authorized adopted the Stock Bonus Plan attached hereto as Exhibit E and reserved for issuance at least one hundred and fifty percent (150%) shall make awards thereunder but only to the extent that such awards do not result in an "excess parachute payment" as defined in Section 280G of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants Code as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation a result of the transactions contemplated hereby;
(q) The approval of the Israel Securities Authority to the offering of the Milestone Shares pursuant to the Go Employee Stock Bonus Plan; and
(r) Parent shall have received a certification from the Company, signed by a responsible corporate officer of the other Transaction Documents or by Company, certifying that the Certificate of Designation.
5.2 Conditions Key Employees continue to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver be employed by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsDate.
Appears in 1 contract
Samples: Agreement and Plan of Merger (NextWave Wireless Inc.)
Conditions to Closing. 5.1 Conditions The obligations of Allied Capital to Investors' Obligations at enter into this Agreement and to perform its obligations hereunder is subject to the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each satisfaction of the following events conditions on or prior to the Closing Date:
(a) The representations and warranties set forth in Article IV hereof shall be true and correct on and as of the Closing Date.
(b) The Credit Parties shall be in compliance with all the terms and provisions set forth herein and in each other Loan Document on their part to be observed or performed, and at the time of and immediately after the Transaction, no Event of Default or Default shall have occurred and be continuing.
(c) Allied Capital shall have completed a due diligence investigation to their satisfaction.
(d) Allied Capital shall have received the following items:
5.1.1 (i) a favorable written opinion of counsel to the representations Credit Parties (A) dated the Closing Date, (B) addressed to Allied Capital and warranties (C) covering such matters relating to the Loan Documents and the Transaction as Allied Capital shall reasonably request, and the Credit Parties hereby request such counsel to deliver such opinion;
(ii) the Notes, duly executed by the Borrowers and each of the Company set forth in this Agreement and in other Loan Documents, executed by each of the parties thereto (other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular datethan Allied Capital);
5.1.2 the Company shall have complied with or performed in all material respects all (iii) for each Credit Party: (A) a copy of the agreementscertificate or articles of incorporation or similar organizational documents, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10including all amendments thereto, 2004;
5.1.4 the Company shall have delivered to of such Investor a certificateCredit Party, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled certified as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased recent date by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State or other appropriate agency of the State jurisdiction of Delawareits organization, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in a certificate as to the Company's consolidated business good standing of such Credit Party as of a recent date, from such Secretary of State or financial condition since the date other appropriate agency; (B) a certificate of the Company's most recent unaudited financial statements contained in Secretary or Assistant Secretary of such Credit Party dated the Disclosure Documents;
5.1.10 the Company shall have authorized Closing Date and reserved for issuance at least one hundred certifying (1) that attached thereto is a true and fifty percent (150%) complete copy of the aggregate number by-laws or similar operational documents or agreements of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price Credit Party as in effect on the Closing Date and without regard at all times since a date prior to any restriction the date of the resolutions described in clause (2) below, (2) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Credit Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (3) that the certificate or articles of incorporation or similar organizational documents of such Credit Party have not been amended since the date of the last amendment thereto shown on the ability certificate of an Investor good standing furnished pursuant to convert Preferred Stock clause (A) above, and (4) as to the incumbency and specimen signature of each officer executing any Loan Document or exercise the Warrants as any other document delivered in connection herewith on behalf of such date)Credit Party; and (C) a certificate of another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary of such Credit Party executing the certificate pursuant to (B) above;
(iv) all amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrowers hereunder or under any other Loan Document;
(v) the Audited Financials and Interim Financials, as described in Section 4.6; and
5.1.11 there (vi) insurance certificates evidencing compliance with Section 6.2.
(e) The Credit Parties shall have entered into the transaction documents with respect to the Senior Credit Facility and Allied Capital shall be no injunction, restraining order or decree provided a copy of any nature of any court or Government Authority of competent jurisdiction that is in the documentation relating thereto;
(f) After giving effect that restrains or prohibits the consummation of to the transactions contemplated hereby, by the Credit Parties and their Subsidiaries shall not have outstanding any Indebtedness other Transaction Documents or by than (i) the Certificate Senior Debt in outstanding principal amount of Designationnot greater than $25,000,000, (ii) the Junior Debt in outstanding principal amount of $12,000,000, (iii) the extension of credit under this Agreement and (iv) the Indebtedness listed on Schedule 4.7.
5.2 Conditions (g) No event that has or reasonably would be expected to Company's Obligations at have a Material Adverse Change shall have occurred since December 31, 2003.
(h) Allied Capital shall have received all necessary corporate approvals of the Closing. The Company's ---------------------------------------------------- obligations Transaction, and all regulatory requirements applicable to effect the Closing are conditioned Allied Capital shall have been satisfied.
(i) Allied Capital shall be reasonably satisfied that, upon the fulfillment or waiver by the Company of each filing of the following events as of Financing Statements with the date of appropriate Governmental Authorities, will hold a perfected Lien in the Closing:Collateral described respectively therein, subject only to Permitted Liens.
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor j) Allied Capital shall have complied with or performed all of received from the agreementsParent Company, obligations and conditions set forth in this Agreement that are required a form satisfactory to be complied with or performed by such Investor on or before Allied Capital, the Closing;Warrant Amendments.
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor (k) Allied Capital shall have executed each of the Transaction Documents to which it is a party received such other documents, instruments and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsinformation as Allied Capital may reasonably request.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock a Debenture and Warrants Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all material respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10December 21, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph Section 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such datethe Closing Date, in substantially the form set forth on attached hereto as Exhibit 5.1.5 F hereto;
5.1.6 the Company shall have delivered to such Investor duly executed certificates representing the Preferred Stock Debenture and the Warrants Warrant being purchased by such Investor;
5.1.7 the Company shall have executed and delivered to the Investor the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to such Investor a certificate, signed by the Investors confirming that Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Designation shall have been Incorporation and By-Laws of the Company, and (ii) resolutions passed by its Board of Directors, or a duly authorized committee thereof, to authorize the transactions contemplated hereby and adopted by all requisite corporate actionthe other Transaction Documents, shall have been duly filed with the Secretary of State and certifying that such documents are true and complete copies of the State originals and that such resolutions have not been amended or superseded, it being understood that such Investor may rely on such certificate as a representation and warranty of Delaware, and shall be in full force and effectthe Company made herein;
5.1.9 the Company shall have delivered to the Collateral Agent to be held pursuant to the terms of the Cash Collateral Agreement the Collateral Amount with respect to the Debentures being issued at the Closing;
5.1.10 the Company shall have obtained the written agreement of each Key Employee to refrain from selling shares of Common Stock for the period specified in, and in accordance with, Section 4.2(h) hereof;
5.1.11 there shall have been occurred no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 5.1.12 the Common Stock shall be listed on the Nasdaq National Market;
5.1.13 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150100%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock Debentures and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock such conversion or exercise the Warrants as of such dateexercise); and
5.1.11 5.1.14 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents or by the Certificate of DesignationDocuments.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Conditions to Closing. 5.1 4.1 Closing shall be conditional on the following Conditions to Investors' Obligations at Precedent having been fulfilled or waived on or before Closing in accordance with this Agreement:
(a) unconditional clearance being received from the Closing. Each ---------------------------------------------------------- Investor's obligations to effect Antimonopoly Committee of Ukraine, the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each governmental agency of the following events as Ukraine responsible for the control of economic concentrations and the granting of approvals for acquisition of control in Ukrainian businesses pursuant to the law of the Ukraine “On the Protection of Economic Competition”, of the transaction contemplated by this Agreement;
(b) the Seller shall have presented originals or notarised copies of the executed share purchase agreement in the Agreed Form and any related agreements between the Seller and the Designated Shareholders for the purchase and transfer of the full ownership of the Shares held by the Designated Shareholders (except for nine thousand one hundred (9,100) Shares held by Xx. Xxxxxx Xxxxxxxxxx) for the Designated Shareholders Purchase Price, subject only to Closing Date:in compliance with clause 2.2(c) above (the Designated Shareholders SPA), as well as copies of the corresponding share certificates;
5.1.1 (c) the representations Seller shall have presented an original or notarised copy of the executed share purchase agreement in the Agreed Form between the Seller and warranties 47,10 North for the purchase and transfer of the full ownership of the Shares held by 47,10 North for the 47,10 North Share Purchase Price, subject only to Closing in compliance with clause 2.2(b) above (the 47,10 North SPA), as well as copies of the corresponding share certificates;
(d) the Seller shall have provided the Purchaser with evidence satisfactory to the Purchaser that, with respect to the Contracts listed in clauses 9 and 11 through (and including) 13 and 15 through (and including) 17 of Schedule 12 which contain a right to amend, accelerate or terminate (or automatic amendment, acceleration, prepayment, redemption or termination of) the Contract or Permit (or rights and obligations thereunder) where there is a change in the direct or indirect shareholders of the Company or any Target Company, the relevant counterparty or authority has been notified by the Seller of the potential change in the direct or indirect shareholders of such Company or Target Company and has provided written confirmation, in the form set forth out in Schedule 13, that it consents to such change of direct or indirect shareholders and waives its right to amend, accelerate or terminate (or automatic amendment, acceleration, prepayment, redemption or termination of) such Contract or Permit (or rights and obligations thereunder) as a result of such change of direct or indirect shareholders;
(e) the Seller shall have provided the Purchaser with (i) an amendment agreement with respect to the Vodafone Contract, confirming the ability of Memorex Turkey to sell capacity to third parties in the form substantially set out in Schedule 14 (the Vodafone Amendment), and (ii) an agreement, in a form reasonably acceptable to the Purchaser, pursuant to which Vodafone (a) consents to the change of indirect shareholders of Memorex Turkey, as contemplated by this Agreement, (b) waives its right to amend, accelerate or terminate (or automatic amendment, acceleration, prepayment, redemption or termination of) the Vodafone Contract (or rights and obligations thereunder) as a result of such change of indirect shareholders of Memorex Turkey, (b) confirms the extensions (including milestones) set out in the Vodafone minutes of a meeting on 23 November 2007 presented to the Purchaser , and (c) waives its right to claim for any damages or payments against Memorex Turkey pursuant to the Vodafone Contract resulting out of or in connection with any delays in the timetable (including milestones) for the construction of the network as required by the Vodafone Contract until the date of this Agreement and in (the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular dateVodafone Waiver);
5.1.2 (f) the Seller shall have provided the Purchaser with an amendment to the option agreement between and the Company dated 20 January 2006, in a form reasonably acceptable to the Purchaser, and clarifying the subject and price of the option, being the shares corresponding to 5 % of the entire share capital of Memorex Turkey held by as set out in Schedule 8 and the price being the nominal value of the shares;
(g) the Non-Compete Agreement in the Agreed Form shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed been signed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, Xx. Xxxxxx Xxxxxxxxxx and shall be remain in full force and effect;
5.1.9 there (h) the Fair Disclosure to the Purchaser and termination (without any penalty or other liability resulting thereby to any Target Company) of all agreements and obligations between any Target Company and either any Affiliate of the Seller or any Related Party, other than the loans covered under clause 16.3 and employment agreements or other agreements similar in nature having the same purpose;
(i) the Holdback Escrow Agreement in the Agreed Form shall have been signed by the parties thereto and shall remain in full force and effect, and all other obligations under the Holdback Escrow Agreement to be fulfilled prior to Closing shall have been fulfilled;
(j) the Seller and the Target Companies shall have complied with all Interim Period Covenants in all material respects;
(k) no material adverse change Material Adverse Change shall have occurred in respect of the Target Companies between the Management Accounts Date and Closing; and
(l) the Seller shall have provided the Purchaser with a termination and settlement agreement, in a form reasonably satisfactory to the Purchaser, in which the framework agreement by and between the Company and United Telecom Georgia (UTG) dated 26 September 2007 regarding the provision of, among other things, dark fiber and bandwidth services (the UTG Contract) is terminated by mutual consent of the parties thereto without any liability whatsoever to any Target Company's consolidated business or financial condition since . Of the above Conditions, the Condition listed in paragraph (a) is referred to as the Purchaser Condition.
4.2 The Purchaser shall, at its own cost, use all reasonable endeavours to ensure that the Purchaser Condition is fulfilled promptly after the date of this Agreement (including making the Company's most recent unaudited financial statements contained in appropriate notification to the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent Antimonopoly Committee of Ukraine within four (150%4) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as Business Days of the date of this Agreement). The Purchaser shall have primary responsibility for obtaining such consent and shall take all steps necessary for that purpose In addition, the ClosingPurchaser shall:
5.2.1 (a) promptly notify the representations Seller (and warranties provide copies or, in the case of each Investor shall be true and correct in all material respects as non-written communications, details) of any communications with the Antimonopoly Committee of Ukraine relating to such consent; and
(b) regularly review with the Seller the progress of such date as if made notification with a view to obtaining clearance from the Antimonopoly Committee of Ukraine at the earliest reasonable opportunity.
4.3 The Seller shall provide (and shall cause the Company to provide) promptly to the Purchaser and the Antimonopoly Committee of Ukraine any necessary information and documents reasonably required for the purpose of making the aforementioned notification.
4.4 The Parties shall use their reasonable endeavours (which on such date (except the part of the Seller includes giving appropriate instructions to the Company) to ensure that all Conditions Precedent will be timely fulfilled and shall fully co-operate with each other to the extent reasonably required in order to fully effectuate the transactions contemplated herein.
4.5 Without prejudice to clause 4.4, the Seller and the Purchaser shall fully co-operate and use all reasonable endeavours necessary to ensure that the Conditions Precedent in clauses 4.1(d) and (e) are fulfilled promptly after the date of this Agreement, it being understood that the entire responsibility for the fulfilment of such Conditions Precedent shall lie with the Seller and that any such representation assistance provided by the Purchaser shall not be construed as a waiver of the fulfilment thereof. The Seller shall consult with and keep the Purchaser fully informed of its progress and actions in this regard.
4.6 The Conditions Precedent in clauses 4.1(a), (d), (e) and (i) may only be waived by the written agreement of the Seller and the Purchaser. All other Conditions Precedent may be waived by written notice from the Purchaser.
4.7 The Seller and the Purchaser shall each notify the other promptly upon becoming aware that any of the Conditions Precedent has been fulfilled. The first Business Day on or warranty relates by which all Conditions Precedent have been fulfilled (or waived in accordance with clause 4.6) except for the Conditions Precedent (or parts thereof) that are to a particular date, such representation or warranty shall be true and correct in all respects fulfilled as of that particular date);Closing, is the Unconditional Date.
5.2.2 each Investor shall have complied with or performed all of 4.8 If the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor Unconditional Date has not occurred on or before the Closing;
5.2.3 there Closing Drop Dead Date, this Agreement shall be no injunctionautomatically terminate (other than the Surviving Provisions). In such event, restraining order or decree neither Party (nor any of its Affiliates) shall have any claim under this Agreement of any nature whatsoever against the other Party (or any of its Affiliates) except in respect of any court rights and liabilities which have accrued before termination or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation under any of the transactions contemplated herebySurviving Provisions. However, by should the Unconditional Date not have occurred as a result of (i) the gross negligence or wilful misconduct of either Party, the defaulting Party shall indemnify the other Transaction Documents Party against all its accrued costs and expenses (including advisory and legal fees) incurred in connection with the transaction contemplated herein, or by (ii) the Certificate of Designation;
5.2.4 each Investor shall have executed each Seller not having provided the Purchaser with written confirmation, in the form set out in Schedule 13, with respect to any of the Transaction Documents Material Consent Contracts, the Seller shall pay to which it is a party and the Purchaser liquidated damages in the amount of EUR 1,500,000 (one million five hundred thousand Euros) or (iii) the Seller not having delivered the same Vodafone Amendment and/or the Vodafone Waiver, the Seller shall pay to the Company; and
5.2.5 each Investor shall have delivered to Purchaser liquidated damages in the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer amount of immediately available fundsEUR 1,500,000 (one million five hundred thousand Euros).
Appears in 1 contract
Samples: Share Purchase Agreement (Hungarian Telephone & Cable Corp)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock Debentures and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closingclosing;
5.1.3 the Closing Date shall occur on a date that is not later than February 1012, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock Debentures and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and Common Stock shall be in full force quoted and effectactively traded on the Nasdaq Stock Market;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or condition (financial condition or otherwise) since the date of the Company's most recent unaudited audited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock Debentures and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock Debentures or exercise the Warrants as of such date); and;
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate Debentures;
5.1.12 the aggregate Purchase Price to be paid by the Investors for all of Designationthe Debentures and Warrants to be issued hereunder shall be at least $10,000,000;
5.1.13 the Company shall have obtained a consent from Senior Lender in form and substance reasonably satisfactory to such Investor consenting to the execution, delivery and performance by the Company of all of the transactions contemplated by the Transaction Documents (the "Senior Lender Consent"); and
5.1.14 the form and substance of the Subordination Agreement shall be reasonably satisfactory to such Investor.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closingclosing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the CompanyDebentures; and
5.2.5 each Investor 5.2.4 the Company shall have delivered to obtained the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsSenior Lender Consent.
Appears in 1 contract
Samples: Securities Purchase Agreement (Omni Energy Services Corp)
Conditions to Closing. 5.1 Conditions to Investors' Purchaser's Obligations at the Closing. Each ---------------------------------------------------------- InvestorThe Purchaser's obligations to effect at the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the ClosingShares, are conditioned upon the fulfillment (or waiver by such Investor the Purchaser) of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor the Purchaser a certificate, signed by the Chief Executive Officer and Chief Financial Officer an officer of the Company, certifying that the conditions specified in this paragraph 5.1 paragraphs 5.1.1, 5.1.2 and 5.1.7 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 5.1.4 the Company shall have delivered to such Investor an opinion the Purchaser a certificate, signed by the Secretary of counsel for the Company, dated as attaching a copy of the resolutions of the Board of Directors authorizing the transactions contemplated hereby, and certifying that such date, in substantially resolutions have not been modified or rescinded since the form set forth on Exhibit 5.1.5 heretodate of their adoption by the Company's Board of Directors;
5.1.6 5.1.5 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants Shares being purchased by such Investorpurchased;
5.1.7 5.1.6 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 5.1.7 there shall have been no material adverse change changes in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited audited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 5.1.8 there shall be no action or proceeding by or before any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign (a "Governmental Entity") or NASD pending or threatened challenging or seeking to restrain or prohibit the purchase and sale of any of the Shares or any of the other transactions contemplated by this Agreement or seeking to obtain damages from either party hereto in connection with the purchase and sale of the Shares or any of the other transactions contemplated by this Agreement.
5.1.9 there shall be no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary injunction, restraining order permanent injunction or decree of other order, enacted, entered, promulgated, enforced or issued by any nature of any court Governmental Entity or Government Authority of competent jurisdiction that is in effect that restrains other legal restraint or prohibits prohibition preventing the consummation purchase and sale of the transactions contemplated hereby, by Shares in effect.
5.1.10 the other Transaction Documents or by Purchaser shall have received an opinion of the Certificate of Designation.Company's counsel in form and substance as set forth on Exhibit B.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect at the Closing are conditioned upon the fulfillment (or waiver by the Company Company) of each of the following events as of the date of the ClosingClosing Date:
5.2.1 the representations and warranties of each Investor the Purchaser shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);; and
5.2.2 each Investor the Purchaser shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor the Purchaser on or before the Closing;.
5.2.3 there shall be no action or proceeding by or before any Governmental Entity or NASD pending or threatened challenging or seeking to restrain or prohibit the purchase and sale of any of the Shares or any of the other transactions contemplated by this Agreement or seeking to obtain damages from either party hereto in connection with the purchase and sale of the Shares or any of the other transactions contemplated by this Agreement.
5.2.4 there shall be no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary injunction, restraining order permanent injunction or decree of other order, enacted, entered, promulgated, enforced or issued by any nature of any court Governmental Entity or Government Authority of competent jurisdiction that is in effect that restrains other legal restraint or prohibits prohibition preventing the consummation purchase and sale of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsShares in effect.
Appears in 1 contract
Conditions to Closing. 5.1 5.1. Conditions to Investors' each Investor’s Obligations at the Closing. Each ---------------------------------------------------------- Investor's ’s obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants Shares at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the following events as of the Closing Date, and the Company shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
5.1.1 a. the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 b. the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 c. the Company shall have delivered to each Investor duly executed certificates representing the Shares being purchased by such Investor a certificateInvestor, signed by unless the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified Shares are issued in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made hereinuncertificated form;
5.1.5 d. the Company shall have delivered to such each Investor an opinion of counsel for the Companya secretary’s certificate, dated as of such datethe Closing Date, in substantially certifying as to (A) the form set forth on Exhibit 5.1.5 hereto;
5.1.6 incorporation and active status of the Company shall have delivered duly executed certificates representing in the Preferred Stock and the Warrants being purchased State of Delaware based upon a certificate issued by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of DelawareDelaware as of a date within ten (10) days of the Closing Date, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in (B) the Company's consolidated business or financial condition since resolutions of the date Board of Directors approving the transactions contemplated hereby, (C) the Restated Certificate of Incorporation of the Company's most recent unaudited financial statements contained , as amended to date, certified as of a date within ten (10) days of the Closing Date, and (D) the By-Laws of the Company, each as in effect as of the Disclosure DocumentsClosing Date;
5.1.10 e. Counsel to the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of delivered to the aggregate number of shares of Common Stock issuable upon conversion of all of Investors a legal opinion substantially in the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants form attached hereto as of such date); andExhibit B;
5.1.11 f. there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby and by the other Transaction Documents or by the Certificate of Designation.Documents;
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by g. the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents Document to which it is a party and shall have delivered the same to the CompanyInvestor; and
5.2.5 each Investor h. no Material Adverse Effect shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsoccurred.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- InvestorThe Purchaser's obligations --------------------- hereunder are subject to effect the Closingfulfillment of the following conditions precedent. In the event that any of the conditions set forth below are not satisfied in all material respects, including without limitation its the Purchaser shall not have any obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each any of the following events Mortgage Loans or to pay the Purchase Proceeds as contemplated hereunder and shall instead be entitled, in its sole discretion, to terminate this Agreement in its entirety.
(a) Each of the Closing Date:
5.1.1 the representations and warranties of made by the Company set forth in this Agreement and in the other Transaction Documents Seller hereunder shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on no event shall have occurred which, with notice or the ability passage of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunctiontime, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designationwould constitute a default under this Agreement.
5.2 Conditions to Company's Obligations at the Closing. (b) The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor Seller shall have delivered to the Company Purchaser all of the Purchase Price for Preferred Stock Mortgage Loan Documents in accordance with Section 2.5 and a ----------- complete Mortgage File with respect to each Mortgage Loan.
(c) Each of the terms and conditions set forth herein which are required to be satisfied on or before the Closing Date shall have been satisfied unless waived by the prejudiced party(ies).
(d) The Seller shall have delivered to the Purchaser on or before the Closing Date the following documents:
(1) a fully executed Agreement;
(2) the Mortgage Loan Schedule, which shall include, without limitation, the Stated Principal Balance of each Mortgage Loan;
(3) an executed Funding Schedule, in the form of Exhibit B --------- hereto;
(4) an Officer's Certificate, in the form of Exhibit C hereto; --------- and
(5) such other documents related to the purchase and sale of the Mortgage Loans and the Warrants being purchases by it at Servicing Rights as the Closing by wire transfer of immediately available fundsPurchaser may reasonably request.
Appears in 1 contract
Samples: Assignment, Assumption and Recognition Agreement (United Panam Financial Corp)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- InvestorThe Purchaser's obligations --------------------- hereunder are subject to effect the Closingfulfillment of the following conditions precedent. In the event that any of the conditions set forth below are not satisfied in all material respects, including without limitation its the Purchaser shall not have any obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each any of the following events Mortgage Loans or to pay the Purchase Proceeds as contemplated hereunder and shall instead be entitled, in its sole discretion, to terminate this Agreement in its entirety.
(a) Each of the Closing Date:
5.1.1 the representations and warranties of made by the Company set forth in this Agreement and in the other Transaction Documents Seller hereunder shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on no event shall have occurred which, with notice or the ability passage of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunctiontime, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designationwould constitute a default under this Agreement.
5.2 Conditions to Company's Obligations at the Closing. (b) The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor Seller shall have delivered to the Company Purchaser all of the Purchase Price for Preferred Stock Mortgage Loan Documents in accordance with Section 2.5 and a complete Mortgage ----------- File with respect to each Mortgage Loan.
(c) Each of the terms and conditions set forth herein which are required to be satisfied on or before the Closing Date shall have been satisfied unless waived by the prejudiced party(ies).
(d) The Seller shall have delivered to the Purchaser on or before the Closing Date the following documents:
(1) a fully executed Agreement;
(2) the Mortgage Loan Schedule, which shall include, without limitation, the Stated Principal Balance of each Mortgage Loan;
(3) an executed Funding Schedule, in the form of Exhibit B --------- hereto;
(4) an Officer's Certificate, in the form of Exhibit C --------- hereto; and
(5) such other documents related to the purchase and sale of the Mortgage Loans and the Warrants being purchases by it at Servicing Rights as the Closing by wire transfer of immediately available fundsPurchaser may reasonably request .
Appears in 1 contract
Samples: Mortgage Loan Purchase and Interim Servicing Agreement (United Panam Financial Corp)
Conditions to Closing. 5.1 Conditions to Investors' Purchaser's Obligations at the Closing. Each ---------------------------------------------------------- InvestorPurchaser's obligations to effect at the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the ClosingShares, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Dateevents:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such the date of the Closing as if made on such date (except date; provided that to the extent that any such representation or warranty relates to a particular date, such representation or warranty representations and warranties made by the Company in paragraph 3.18 shall be true and correct in all material respects as of that particular date)the date specified therein;
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor Purchaser a certificate, signed by the Chief Executive Officer and Chief Financial Officer an officer of the Company, certifying that the conditions specified in this paragraph 5.1 paragraphs 5.1.1 and 5.1.2 above have been fulfilled as fulfilled;
5.1.4 the Company shall have filed the Certificate of Designation with the Secretary of State of the ClosingState of Delaware, it being understood that and shall have furnished such Investor may rely on such certificate as though it were Purchaser with a representation and warranty of the Company made hereinfile-stamped copy thereof;
5.1.5 the Company shall have delivered to such Investor Purchaser an opinion of counsel for the Company, dated as of such datethe date of the Closing, in substantially the form set forth on attached as Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 5.1.7 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and Common Stock shall be in full force designated for quotation and effectactively traded on the Nasdaq National Market;
5.1.9 5.1.8 there shall have been no material adverse change changes in the Company's consolidated business or financial condition of the Company and its subsidiaries taken as a whole since the date of the Company's most recent unaudited audited financial statements contained in the Disclosure Documents;
5.1.10 5.1.9 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) upon conversion of the aggregate Preferred Shares the number of shares of Common Stock issuable upon conversion specified in the Registration Rights Agreement;
5.1.10 the Purchasers shall have received executed irrevocable proxies, in substantially the form of all Exhibit 5.1.10 hereto (each, a "Management Proxy" and collectively, the "Management Proxies"), from not more than ten (10) stockholders of the Preferred Stock and exercise of all Company who own, in the aggregate, not less than 47% of the Warrants to be issued at outstanding shares of Common Stock as of the Closing Date;
5.1.11 the Company shall have received notice from the Securities and Exchange Commission (such number the "SEC") that the SEC has no further comments with respect to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date)Company's Proxy Statement no later than November 21, 1997; and
5.1.11 there 5.1.12 the Company shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designationhave obtained Stockholder Approval.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect at the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closingevents:
5.2.1 the representations and warranties of each Investor Purchaser shall be true and correct in all material respects as of such the date of the Closing as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor Purchaser shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor Purchaser on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 5.2.3 each Investor Purchaser shall have delivered to the Company a certificate, signed by an officer of such Purchaser, certifying that the Purchase Price for Preferred Stock conditions specified in paragraphs 5.2.1 and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds5.2.2 above have been fulfilled.
Appears in 1 contract
Samples: Securities Purchase Agreement (Metal Management Inc)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock Debentures and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closingclosing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10April 15, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock Debentures and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and Common Stock shall be in full force quoted and effectactively traded on the Nasdaq Stock Market;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or condition (financial condition or otherwise) since the date of the Company's most recent unaudited audited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock Debentures and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock Debentures or exercise the Warrants as of such date); and;
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate Debentures;
5.1.12 the aggregate Purchase Price to be paid by the Investors for all of Designationthe Debentures and Warrants to be issued hereunder shall be at least $5,050,000;
5.1.13 the Company shall have obtained a consent from Senior Lender in form and substance reasonably satisfactory to such Investor consenting to the execution, delivery and performance by the Company of all of the transactions contemplated by the Transaction Documents (the "Senior Lender Consent"); and
5.1.14 the form and substance of the Subordination Agreement shall be reasonably satisfactory to such Investor.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closingclosing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the CompanyDebentures; and
5.2.5 each Investor 5.2.4 the Company shall have delivered to obtained the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsSenior Lender Consent.
Appears in 1 contract
Samples: Securities Purchase Agreement (Omni Energy Services Corp)
Conditions to Closing. 5.1 8.1 F5 Finishes Closing Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its F5 Finishes’ obligation to purchase close the Preferred Stock and Warrants at Transaction is subject to the Closing, are conditioned upon the fulfillment or waiver by such Investor satisfaction of each of the following events as of conditions (the “F5 Finishes Closing DateConditions”) at or prior to Closing:
5.1.1 the (a) Shareholder’s representations and warranties of the Company set forth in this Agreement and Article 4, as qualified or limited by any exceptions in the other Transaction Documents shall be Schedules to Article 4, are true and correct in all material respects as of such date on the Closing Date as if made on such date at and as of Closing (except other than representations and warranties that to the extent that any such representation or warranty relates to address matters as of a particular certain date, such representation or warranty shall be which were true and correct in all respects as of that particular date);
5.1.2 (b) Shareholder has executed and delivered all of the Company shall have documents and instruments that he is required to execute and deliver or enter into prior to or at Closing, and has performed, complied with or performed satisfied in all material respects all of the agreementsother obligations, obligations agreements and conditions set forth in under this Agreement and in the other Transaction Documents that are he is required to be complied perform, comply with or performed by the Company on satisfy at or before the prior to Closing;
5.1.3 the Closing Date shall occur (c) each Notice or filing listed on a date that Schedule 4.5 has been duly given or made, and each Consent or Permit listed on Schedule 4.5 has been obtained and is not later than February 10, 2004in full force;
5.1.4 (d) F5 Finishes and Shareholder have agreed on the Company shall have delivered to such Investor a certificateFinancial Statements and the Interim Financial Statements;
(e) the Company’s adjusted earnings before interest, signed by taxes, depreciation and amortization for the Chief Executive Officer and Chief Financial Officer 12-month period ended December 31, 2018 was $757,975;
(f) consistent with Section 8.1(e), above, after Xxxxxx, LLP completes its audit of the Company, certifying that F5 Finishes is satisfied with the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made hereinCompany’s Financial Statements;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been (g) no material adverse change in the Company's consolidated business ’s assets, financial condition, operations, operating results or financial condition prospects has occurred since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documentsthis Agreement;
5.1.10 (h) no Suit has been initiated or Threatened since the date of this Agreement that challenges or seeks damages or other relief in connection with the Transaction or that could have the effect of preventing, delaying, making illegal or otherwise interfering with the Transaction;
(i) the Registration Statement has been declared effective;
(j) F5 Finishes has approved the pricing and other terms of the IPO;
(k) the actual IPO Share Price of the F5 Finishes Stock is at least seventy percent (70%) of the Baseline IPO Share Price;
(l) the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants cash as of such date)Closing in an amount not less than $100,000; and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation (m) closing of the transactions contemplated hereby, by other combination agreements with the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each Combining Companies and closing of the following events as IPO have both taken place concurrently with the closing of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that this Agreement. F5 Finishes may waive any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth condition specified in this Agreement that are required to be complied with or performed Section 8.1 by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have written waiver delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it Shareholder at the Closing by wire transfer of immediately available fundsany time prior to or at Closing.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at The Closing on the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are Loan is conditioned upon the fulfillment or waiver by such Investor satisfaction of each of the following events as of the Closing Datefollowing:
5.1.1 the representations (a) all Financing Documents and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that instruments applicable to the extent that any such representation or warranty relates Loan are in form and content satisfactory to a particular date, such representation or warranty shall be true the Bank and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably in form and substance satisfactory to the Investors confirming that the Certificate of Designation Bank and shall have not been duly authorized and adopted by all requisite corporate actionmodified, shall have been duly filed with the Secretary of State of the State of Delawareamended or rescinded, and shall be in full force and effect;
5.1.9 there effect on and as of the Closing Date and executed original or certified copies of each thereof shall have been no material adverse change in delivered to the Company's consolidated business or financial condition since Bank;
(b) the date Bank has received a certified copy of the Company's most recent unaudited financial statements contained Authorizing Ordinance of the Enterprise, which shall be in form and content satisfactory to the Disclosure Bank and authorize the Enterprise to finance the Project, obtain the Loan and perform all acts contemplated by this Agreement and all other Financing Documents; and a certified copy of all other ordinances, resolutions and proceedings taken by the Enterprise authorizing the Enterprise to finance the Project, obtain the Loan and the execution, delivery and performance of this Agreement and the other Financing Documents and the transactions contemplated hereunder and thereunder, together with such other certifications as to the specimen signatures of the officers of the Enterprise authorized to sign this Agreement and the other Financing Documents to be delivered by the Enterprise hereunder and as to other matters of fact as shall reasonably be requested by the Bank;
5.1.10 (c) the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect Enterprise has provided a certificate certifying that on the Closing Date each representation and without regard to any restriction warranty on the ability part of the Enterprise contained in this Agreement and in any other Financing Document is true and correct and no Event of Default, or event which would, with the passage of time or the giving of notice, constitute an Investor Event of Default, has occurred and is continuing and no default exists under any other Financing Documents, or under any other agreements by and between the Enterprise and the Bank and certifying as to convert Preferred Stock or exercise such other matters as the Warrants Bank might reasonably request;
(d) the Enterprise has provided a certificate certifying that the only Senior Debt outstanding as of such date); andthe Closing Date is the 2018A Bonds and the 2018B Bonds and that no Parity Debt is outstanding as of the Closing Date;
5.1.11 there (e) the Bank shall be no injunction, restraining order or decree have received the opinion of any nature of any court or Government Authority of competent jurisdiction that is in Xxxxxx Snow LLP to the effect that restrains (i) the obligation of the Enterprise to pay the principal of and interest on the Loan constitutes a valid and binding special obligation of the Enterprise payable solely from the Net Pledged Revenues with a lien on the Net Pledged Revenues which is subordinate to the lien thereon of the Senior Debt, and (ii) this Agreement and the Note are valid and binding obligations of the Enterprise, enforceable against the Enterprise in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors’ rights generally, and by equitable principles, whether considered at law or prohibits the consummation of in equity;
(f) all proceedings taken in connection with the transactions contemplated herebyby this Agreement, and all instruments, authorizations and other documents applicable thereto, are satisfactory to the Bank and its counsel;
(g) no law, regulation, ruling or other action of the United States, the State of Colorado or any political subdivision or authority therein or thereof shall be in effect or shall have occurred, the effect of which would be to prevent the Enterprise from fulfilling its obligations under this Agreement or the other Financing Documents;
(h) all Bank counsel fees and any other fees and expenses due and payable in connection with the execution and delivery of this Agreement shall have been paid by the Enterprise upon execution and delivery of this Agreement;
(i) the Bank shall have been provided with the opportunity to review all pertinent financial information regarding the Enterprise, agreements, documents, and any other Transaction Documents material information relating to the Enterprise or the Net Pledged Revenues or any other component of the collateral securing the obligations of the Enterprise hereunder;
(j) all information provided by the Certificate of Designation.Enterprise to the Bank is accurate in all respects;
5.2 Conditions to Company's Obligations at (k) the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver Bank shall have received such other certificates, approvals, filings, opinions and documents as shall be reasonably requested by the Company Bank;
(l) all other legal matters pertaining to the execution and delivery of each of this Agreement and the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor other Financing Documents shall be true and correct in all material respects as of such date as if made on such date (except that reasonably satisfactory to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsBank.
Appears in 1 contract
Samples: Loan Agreement
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's The several obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Underwriters --------------------- hereunder are subject to the following events as conditions:
(a) Subsequent to the execution and delivery of the Underwriting Agreement and prior to the Closing Date:,
5.1.1 (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus, that is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Prospectus.
(b) The Representatives shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (a) (i) above and to the effect that the representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents shall be are true and correct in all material respects as of such date as if made on such date (except the Closing Date and that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have has complied with or performed in all material respects all of the agreements, obligations agreements and satisfied all of the conditions set forth in this Agreement and in the other Transaction Documents that are required on its part to be complied with performed or performed by the Company satisfied on or before the Closing;Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
5.1.3 (c) The Representatives shall have received on the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of Jenkens & Xxxxxxxxx, a Professional Corporation, counsel for the Company, dated as the Closing Date addressed to the Representatives and in form and substance satisfactory to Underwriters' counsel, to the effect that:
(i) Each of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered and its subsidiaries: (A) has been duly executed certificates representing incorporated and is validly existing as a corporation in good standing under the Preferred Stock laws of its jurisdiction of incorporation; (B) is duly qualified and the Warrants being purchased by such Investor;
5.1.7 in good standing as a foreign corporation in each jurisdiction where the Company shall has certified to such counsel that it owns, leases or licenses properties, maintains employees or conducts business, except for those failures to be so qualified or in good standing which will not in the aggregate have executed and delivered the Registration Rights Agreement;
5.1.8 a material adverse effect on the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by its subsidiaries taken as a whole; and (C) has all requisite corporate actionpower and authority to own, shall have lease and license its respective properties and conduct its business as described in the Registration Statement and the Prospectus. All of the issued and outstanding capital stock of each subsidiary of the Company has been duly filed with and validly issued and is fully paid and nonassessable and was not issued in violation of any statutory preemptive rights or, to such counsel's knowledge, contractual preemptive rights and is owned directly or indirectly by the Secretary Company, free and clear of State any lien, encumbrance, security interest or, to such counsel's knowledge, any claim, restriction on transfer, shareholders' agreement, voting trust or other defect of title whatsoever.
(ii) The authorized capital stock of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change Company is as set forth in the Company's consolidated business or financial condition since Registration Statement and the date Prospectus. All of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 outstanding shares of common stock of the Company shall have are duly and validly authorized and reserved for issuance at least one hundred issued, are fully paid and fifty percent (150%) nonassessable and were not issued in violation of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants or subject to any statutory preemptive rights or, to such counsel's knowledge, contractual preemptive rights. The Offered Securities to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect delivered on the Closing Date have been duly and without regard validly authorized and, when delivered by the Company and paid for by the several Underwriters in accordance with this Agreement, will be duly and validly issued, fully paid and nonassessable and will not have been issued in violation of or subject to any restriction on statutory preemptive rights or, to such counsel's knowledge, contractual preemptive rights.
(iii) This Agreement has been duly and validly authorized, executed and delivered by the ability of an Investor to convert Preferred Stock Company.
(iv) To such counsel's knowledge, there is no legal or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order governmental suit or decree of any nature of proceeding or investigation before any court or Government Authority before or by any public, regulatory or governmental agency or body pending or threatened against the Company or any of competent jurisdiction its subsidiaries or their business or properties, which is of a character required to be disclosed in the Registration Statement and the Prospectus that is in effect that restrains or prohibits has not been disclosed therein.
(v) The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver hereby by the Company do not and will not (A) conflict with or result in a breach of any of the terms and provisions of, or constitute a default (or an event which with notice or lapse of time, or both, would constitute a default) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to, any material agreement, instrument, franchise, license or permit certified to such counsel by an officer of the Company to which the Company or any of its subsidiaries is a party or by which any of such corporations or their respective properties or assets may be bound; (B) violate or conflict with any provision of the articles of incorporation or bylaws of the Company or any of its subsidiaries, or any statute, rule or regulation of any court or any public, governmental or regulatory agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties or assets or, to the knowledge of such counsel, any judgment, decree or order of any court or any public, governmental or regulatory agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties or assets; or (C) to such counsel's knowledge, require any consent, approval, authorization, order, registration, filing, qualification, license or permit of or with any court or any public, governmental or regulatory agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties or assets, except (in the case of clause (C) above) for any such consents, approvals, authorizations, orders, registrations, filings, qualifications, licenses and permits as may be required by the NASD or under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Securities by the Underwriters (as to which such counsel need express no opinion) and such as have been made or obtained under the Securities Act.
(vi) The Registration Statement and the Prospectus and any amendments thereof or supplements thereto (other than the exhibits and the financial statements and schedules and other financial or statistical data included therein, as to which no opinion need be rendered) comply as to form in all material respects within the requirements of the Securities Act.
(vii) The Registration Statement has become effective under the Securities Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any post- effective amendment thereof has been issued and no proceedings therefor have been initiated or threatened by the Commission and all filings required by Rule 424(b) under the Securities Act have been made within the time periods required thereby.
(viii) The Offered Securities have been approved for listing, and the Offered Securities to be sold under this Agreement to the Underwriters have been duly authorized for listing, subject to notice of issuance, on the New York Stock Exchange.
(ix) To such counsel's knowledge, other than as disclosed in the Registration Statement and the Prospectus, no holders of securities of the Company have rights which have not been satisfied or waived to the registration of shares of capital stock or other securities of the Company because of the filing of the Registration Statement by the Company, or the offering contemplated thereby.
(x) To such counsel's knowledge, each of the following events Company and its subsidiaries has obtained all Licenses as are necessary or required for the ownership, leasing and operation of its properties and the conduct of its business as now being conducted. In addition, such counsel shall state that such counsel has participated in conferences with officers and representatives of the Company, representatives of the independent public accountants for the Company and the Underwriters at which the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for and has not verified the accuracy, completeness or fairness of the statements contained in the Registration Statement and the Prospectus, and has not made any independent check or verification thereof, on the basis of the foregoing (relying as to materiality to a large extent upon facts provided by officers and other representatives of the Company), no facts have come to the attention of such counsel that lead such counsel to believe that either the Registration Statement at the time it became effective (including the information deemed to be part of the Registration Statement at the time of effectiveness pursuant to Rule 430A(b), if applicable), or any amendment thereof made prior to the Closing Date as of the date of such amendment, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the Closing:
5.2.1 statements therein not misleading or that the representations and warranties of each Investor shall be true and correct in all material respects Prospectus as of such date as if made on such its date (except or any amendment thereof or supplement thereto made prior to the Closing Date as of the date of such amendment or supplement) and as of the Closing Date contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no belief or opinion with respect to the exhibits and the financial statements and other financial and statistical data included therein). In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws other than the laws of the United States and jurisdictions in which they are admitted, to the extent such counsel deems proper and to the extent specified in such opinion, if at all, upon an opinion or opinions (in form and substance reasonably satisfactory to Underwriters' counsel) of other counsel reasonably acceptable to Underwriters' counsel, familiar with the applicable laws; (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and certificates or other written statements of officers of departments of various jurisdictions having custody of documents respecting the corporate existence or good standing of the Company and its subsidiaries, provided that copies of any such representation statements or warranty relates to a particular date, such representation or warranty certificates shall be true delivered to Underwriters' counsel. The opinion of such counsel for the Company shall state that the opinion of any such other counsel is in form satisfactory to such counsel and, in their opinion, you and correct they are justified in all respects as of that particular date);relying thereon.
5.2.2 each Investor (d) The Representatives shall have complied with or performed all received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Representatives, from the Company's independent public accountants, containing statements and information of the agreements, obligations and conditions set forth type ordinarily included in this Agreement that are required accountants' "comfort letters" to be complied underwriters with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same respect to the Company; and
5.2.5 each Investor shall have delivered to financial statements and certain financial information contained in or incorporated by reference into the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (Americredit Capital Trust I)
Conditions to Closing. 5.1 6.1 Conditions to Investors' Obligations at the ClosingPurchaser's Obligation to Purchase. Each ---------------------------------------------------------- Investor's obligations to effect ---------------------------------------------------- The obligation of the Closing, including without limitation its obligation Purchaser to purchase the Preferred Common Stock and Warrants at the Closing, are conditioned upon hereunder is subject to the fulfillment or waiver by such Investor the Company to the Purchaser's satisfaction, on the Closing Date, of each of the following events conditions, any of which may be waived in whole or in part by the Purchaser in writing:
(a) Favorable opinions of Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP, counsel to Company, substantially in the form attached hereto as Exhibit C, shall be --------- delivered to the Purchaser.
(b) Resolutions of the board of directors of Company, certified by the Secretary or Assistant Secretary of Company, as of the Closing Date:
5.1.1 , duly adopted and in full force and effect on such date, authorizing (i) the representations and warranties consummation of each of the Company set forth in transactions contemplated by this Agreement and in the other Transaction Documents shall be true (ii) specific officers to execute and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in deliver this Agreement and each other Transaction Document to which it is a party, shall be delivered to the Purchaser.
(c) Governmental certificates, dated the most recent practicable date prior to the Closing Date, with telephonic updates where available, showing that Company is organized and in good standing in the other Transaction Documents that are required to State of Delaware, shall be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer Purchaser.
(d) A copy of the certificate of incorporation and all amendments thereto of Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled certified as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased recent date by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the copies of Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunctionby-laws, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, certified by the other Transaction Documents Secretary or by the Certificate Assistant Secretary of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as true and correct as of the date Closing Date, shall be delivered to the Purchaser.
(e) The Registration Rights Agreement shall be duly executed by the parties thereto.
(f) The Company shall issue and deliver the Warrant to the Purchaser.
(g) Certificates of the Closing:
5.2.1 Secretary or an Assistant Secretary of Company, dated the representations and warranties of each Investor shall be true and correct in all material respects Closing Date, as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true incumbency and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all signatures of the agreementsofficers of Company executing this Agreement, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the each other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents Document to which it is a party and any other certificate or other document to be delivered pursuant hereto or thereto, together with evidence of the same to the Company; and
5.2.5 each Investor incumbency of such Secretary or Assistant Secretary, shall have be delivered to the Company Purchaser.
(h) A Certificate of the Purchase Price for Preferred Stock and the Warrants being purchases by it at President, Senior Vice President or CEO of Company, dated the Closing by Date, stating that all of the representations and warranties of Company contained herein or in the other Transaction Documents are true and correct on and as of the Closing Date and that no breach of any covenant contained in Article V has occurred or would result from the Closing hereunder shall be delivered to the Purchaser.
(i) The Company shall make a wire transfer of immediately available fundsall reasonable fees and expenses of Mastech Corporation's outside counsel, Xxxxxxxx Ingersoll Professional Corporation.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing6.1 The obligation of PDL BioPharma, including without limitation its obligation Inc. to purchase the Preferred Stock and Warrants First Closing Securities at the Closing, are conditioned upon First Closing is subject to the fulfillment to PDL BioPharma, Inc.’s satisfaction, on or waiver by such Investor of each prior to the First Closing Date, of the following events as conditions, any of the Closing Datewhich may be waived by PDL BioPharma, Inc.:
5.1.1 the (a) The representations and warranties of made by the Company set forth in this Agreement and in the other Transaction Documents Section 4 hereof shall be true and correct in all material respects as of such date as if made on such date (the First Closing Date, except that to the extent that any such representation or warranty relates to a particular expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct in all respects as of that particular such earlier date);
5.1.2 the . The Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement covenants herein and in the any other Transaction Documents that are Document required to be complied with or performed by the Company it on or before prior to the Closing;First Closing Date.
5.1.3 (b) With the Closing Date shall occur on a date that is not later than February 10exception of declarations of effectiveness by the Commission with respect to the registration statements contemplated in the Registration Rights Agreement, 2004;
5.1.4 the Company shall have delivered to such Investor a certificateobtained any and all consents, signed permits, approvals, registrations and waivers necessary for consummation of the purchase and sale of the First Closing Securities and the consummation of the other transactions contemplated by the Chief Executive Officer and Chief Financial Officer Transaction Documents, all of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and which shall be in full force and effect;.
5.1.9 there (c) The Company shall have filed with Nasdaq a Notification Form: Listing of Additional Shares for the listing of the Securities, a copy of which shall have been provided to the Purchasers.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated at the First Closing.
(e) PDL BioPharma, Inc. shall have received a certificate signed by the Chief Executive Officer or the Principal Financial Officer, dated as of the First Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (c), (d), (h), (j) and (k) of this Section 6.1.
(f) PDL BioPharma, Inc. shall have received a certificate signed by the Company’s Secretary, dated as of the First Closing Date, certifying the resolutions adopted by the board of directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, certifying the current versions of the certificate of incorporation and by-laws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(g) PDL BioPharma, Inc.shall have received an opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company, dated as of the First Closing Date, in form and substance reasonably acceptable to the Purchasers and addressing such legal matters as PDL BioPharma, Inc. may reasonably request.
(h) No stop order or suspension of trading shall have been imposed by the Nasdaq Stock Market, the Commission or any other governmental regulatory body with respect to public trading in the Common Stock.
(i) The Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon the exercise of Common Warrants to be issued at the First Closing.
(j) There shall not have occurred any material adverse change in the Company's ’s consolidated business or financial condition since the date of the Company's ’s most recent unaudited financial recently filed SEC Document.
(k) The Common Stock shall be listed on the Nasdaq Stock Market and the Company shall have filed a supplemental listing application with the Nasdaq Stock Market for the listing of the Common Stock and Common Warrant Shares issuable hereunder and cause such approval shall have been obtained.
(l) The Company shall have executed and delivered to the Purchasers the Registration Rights Agreement.
(m) PDL BioPharma, Inc. shall have received the Voting and Support Agreements executed by the Company, Invesco and WIM.
(n) The Company shall have complied with all applicable laws and regulations, including (but not limited to) the Financial Conduct Authority’s regulatory rules and regulations on collective investment schemes (COLL Regulations).
6.2 The Second Closing, if any, is subject to the fulfillment to such Purchaser’s satisfaction, on or prior to the Second Closing Date, of the following conditions, any of which may be waived by such Purchaser (as to itself only):
(a) The representations and warranties made by the Company in Section 4 hereof shall be true and correct on the Second Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case such representation or warranty shall be true and correct as of such earlier date. The Company shall have performed in all material respects all obligations and covenants herein and in any other Transaction Document required to be performed by it on or prior to the Second Closing Date.
(b) With the exception of declarations of effectiveness by the Commission with respect to the registration statements contained that cover the Second Closing Securities as contemplated in the Disclosure Registration Rights Agreement, the Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary for consummation of the purchase and sale of the Second Closing Securities and the consummation of the other transactions contemplated by the Transaction Documents;, all of which shall be in full force and effect.
5.1.10 (c) To the extent not previously satisfied by the Company’s filing with Nasdaq pursuant to Section 6.1(c) of this Agreement, the Company shall have filed with Nasdaq an additional Notification Form: Listing of Additional Shares for the listing of the Securities subject to the Second Closing, a copy of which shall have been provided to the Purchasers.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby.
(e) Each Purchaser shall have received a certificate signed by the Chief Executive Officer or the Principal Financial Officer, dated as of the Second Closing Date, certifying to the fulfillment of the conditions specified in subsections (a), (b), (c), (d) (h), (j) and (k) of this Section 6.2.
(f) Each Purchaser shall have received a certificate signed by the Secretary, dated as of the First Closing Date, certifying the resolutions adopted by the board of directors of the Company approving the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Securities, certifying the current versions of the certificate of incorporation and by-laws of the Company and certifying as to the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company.
(g) The Purchasers shall have received an opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Company, dated as of the Second Closing Date, in form and substance reasonably acceptable to the Purchasers and addressing such legal matters as the Purchasers may reasonably request.
(h) No stop order or suspension of trading shall have been imposed by the Nasdaq Stock Market, the Commission or any other governmental regulatory body with respect to public trading in the Common Stock.
(i) The Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Common Warrants to be issued at the Closing Second Closing.
(j) There shall not have occurred any material adverse change in the Company’s consolidated business or financial condition since the date of the Company’s most recently filed SEC Document.
(k) The Common Stock shall be listed on the Nasdaq Stock Market and the Company shall have filed a supplemental listing application with the Nasdaq Stock Market for the listing of the Common Stock and Common Warrant Shares issuable hereunder and cause such number approval to be determined using the Conversion Price obtained.
(l) Stockholder Approval shall have been obtained and Exercise Price in effect on the Closing Date deemed effective and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as evidence of such dateStockholder Approval in a form reasonably acceptable to the Purchasers shall have been delivered to the Purchasers.
(m) The Company and PDL BioPharma, Inc. shall have prepared and agreed on an operational budget addressing the use of Company resources for the period ending 12 months from June 1, 2019 (the “12-Month Operating Budget”); and
5.1.11 there . Such 12-Month Operating Budget shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver prepared by the Company of each in good faith and include all material expenses reasonably expected to be incurred by the Company through the expiration of the following events period covered by the 12-Month Operating Budget. A copy of such 12-Month Operating Budget shall be provided to the Purchasers.
(n) Each of Invesco and WIM shall have surrendered for cancellation, prior to the Second Closing Date, all existing and outstanding warrants held in the Company by their respective funds as of the date of this Agreement, including: (i) for Invesco: 212,765 warrants to purchase shares of Common Stock with an exercise price per underlying share of $5.20, and (ii) for WIM: 475,000 warrants to purchase shares of Common Stock with an exercise price per underlying share of $8.35 and 975,264 warrants to purchase shares of Common Stock with an exercise price per underlying share of $5.20; it being a condition to each such parties that the other shall also have surrendered all of its warrants (other than those to be acquired at the Second Closing).
6.3 The obligation of the Company to sell and issue First Closing Securities and to deliver First Closing Securities to PDL BioPharma, Inc. at the First Closing is subject to fulfillment to the satisfaction of the Company on or prior to the First Closing Date of the following conditions, any of which may be waived by the Company:
5.2.1 the (a) The representations and warranties of each Investor made by PDL BioPharma, Inc. in Section 5 hereof shall be true and correct in all material respects as of such date as if made on such date (except that the First Closing Date. PDL BioPharma, Inc. shall have performed in all material respects all obligations and covenants herein required to be performed by it on or prior to the extent that First Closing Date.
(b) Each Purchaser shall have executed and delivered to the Company the Registration Rights Agreement.
(c) The Company shall have received payment, by wire transfer of immediately available funds, in the full amount of the purchase price for the number of Securities being purchased by at the First Closing, as determined in accordance with Section 2 hereof.
(d) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby.
6.4 The obligation of the Company to sell and issue Second Closing Securities and to deliver Second Closing Securities to any Purchaser at the Second Closing, if any, is subject to fulfillment to the satisfaction of the Company on or prior to the Second Closing Date of the following conditions by such representation or warranty relates to a particular datePurchaser, any of which may be waived by the Company:
(a) The representations and warranties made by such representation or warranty Purchaser in Section 5 hereof shall be true and correct in all material respects as of that particular date);
5.2.2 each Investor on the Second Closing Date. Such Purchaser shall have complied with or performed in all of the agreements, material respects all obligations and conditions set forth in this Agreement that are covenants herein required to be complied with or performed by such Investor it on or before prior to the Second Closing Date.
(b) The Company shall have received payment, by wire transfer of immediately available funds, in the full amount of the purchase price for the number of Securities being purchased by such Purchaser at the Second Closing;, as determined in accordance with Section 2 hereof.
5.2.3 there shall be no (c) No judgment, writ, order, injunction, restraining order award or decree of or by any nature of court, or judge, justice or magistrate, including any bankruptcy court or Government Authority judge, or any order of competent jurisdiction that is in effect that restrains or prohibits by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;.
5.2.4 each Investor (d) The Company shall have executed each of the Transaction Documents to which it is received a party and delivered the same Purchase Notice with respect to the Company; andSecond Closing Securities to be sold in the Second Closing.
5.2.5 each Investor (e) Stockholder Approval shall have delivered to the Company the Purchase Price for Preferred Stock been obtained and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsdeemed effective.
Appears in 1 contract
Samples: Securities Purchase Agreement (PDL Biopharma, Inc.)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its The obligation of each Purchaser to purchase Notes hereunder shall be subject to the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver receipt by such Investor each Purchaser of each Financing Document to be entered into on the Closing Date and to the satisfaction of the following events as conditions precedent, each in form and substance reasonably satisfactory to each Purchaser:
(a) receipt by the Purchasers of executed copies of the Financing Documents;
(b) receipt by Purchasers of the financial statements referenced in Sections 3.5(a) and (b);
(c) receipt of a customary legal opinion of Sidley Austin LLP, as counsel to the Issuer;
(d) receipt of payment of all fees, expenses and other amounts due and payable on the Closing Date:Date under each Financing Document; provided that, in accordance with the provisions of the Note, it is hereby acknowledged and agreed that the payment of legal expenses of any Purchaser reimbursable under this Section 7.1(d) shall be limited to legal expenses incurred on behalf of FF Global Partners Investment LLC (formerly known as FF Top Holding LLC) and shall not exceed the aggregate amount of $400,000;
5.1.1 (e) subject to the Note Waivers (including any cross-default under this Agreement that may arise as a matter of any Default or Event of Default under the Secured SPA), the representations and warranties of the Company set forth in this Agreement and contained in the other Transaction Financing Documents shall be are true and correct in all material respects (without duplication of any materiality qualifier) as of such date as if made on such date the Closing Date, both before and after giving effect to the transactions contemplated by the Financing Documents;
(except that f) receipt of, not later than five (5) days prior to the Closing Date, all documentation and other information required pursuant to their respective policies and by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, to the extent that any such representation or warranty relates information has been requested prior to a particular datethe Closing Date, such representation or warranty and in each case, the results of the applicable Patriot Act and OFAC searches with respect to the Issuer and its Subsidiaries shall be true and correct in all respects as of that particular date)satisfactory to the Purchasers;
5.1.2 (g) subject to the Company Note Waivers (including any cross-default under this Agreement that may arise as a matter of any Default or Event of Default under the Secured SPA), no Default or Event of Default shall have complied with occurred and is continuing or performed in would occur as a result of such purchase; and
(h) receipt of all material respects all customary resolutions or written consents of the agreements, obligations Issuer’s appropriate governing body approving and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 authorizing the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer Transactions. For purposes of the Company, certifying that determining whether the conditions specified in this paragraph 5.1 Section 7.1 have been fulfilled as satisfied, by funding amounts for the purchase of the Notes hereunder at the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company each Purchaser shall be deemed to have delivered consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of DesignationPurchaser.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Securities Purchase Agreement (Faraday Future Intelligent Electric Inc.)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's ---------------------------------------------------- obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants Purchased Securities at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the following events as of the Closing Date:
5.1.1 the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10April 1, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered to such Investor duly executed certificates representing the Preferred Stock Shares, Series A Warrant and the Warrants Series B Warrant being purchased by such Investor;
5.1.7 the Company shall have executed and delivered to such Investor the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence to such Investor a copy of the Insurance Binder, and such Investor shall be reasonably satisfactory to the Investors confirming satisfied that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and Insurance Policies shall be in full force and effecteffect immediately upon payment of the premiums thereof at Closing;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby or by the other Transaction Documents or Documents; and
5.1.11 the aggregate Purchase Price to be paid at the Closing by the Certificate of DesignationInvestors for the Purchased Securities shall be at least $5,500,000.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- ----------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the ClosingClosing Date:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, hereby or by the other Transaction Documents or by the Certificate of DesignationDocuments;
5.2.4 each Investor shall have executed each of the Transaction Documents Document to which it is a party and delivered the same to the Company; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants Purchased Securities being purchases purchased by it at the Closing by wire transfer of immediately available funds.
Appears in 1 contract
Samples: Securities Purchase Agreement (Raptor Networks Technology Inc)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at The several obligations of the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation Underwriters to purchase and pay for the Preferred Stock and Warrants at Debt Securities will be subject to the Closing, are conditioned upon the fulfillment or waiver by such Investor of each accuracy of the representations and warranties on the part of the Company herein contained, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance by the Company of all of its covenants and other obligations hereunder and to the following events as further conditions:
(a) The Prospectus shall have been timely filed with the Commission in accordance with Rule 430A of the Securities Act Regulations; and, at the Closing Date, the Registration Statement shall be effective and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Securities Act or proceedings therefor initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus shall have been complied with to the reasonable satisfaction of counsel to the Underwriters.
(b) The Underwriters shall have received, on the Closing Date, a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement and this Agreement and that:
5.1.1 (i) the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents shall be are true and correct on and as of the Closing Date, with the same effect as if made on the Closing Date, and the Company has complied in all material respects as of such date as if made on such date (except that to with all the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true agreements and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed satisfied in all material respects all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) since the date of the agreements, obligations and conditions set forth in this Agreement and most recent financial statements included in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10Registration Statement (exclusive of any supplement thereto), 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have has been no material adverse change in the Company's consolidated condition (financial or other), earnings, business or financial condition properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement (exclusive of any supplement thereto); and
(iii) to each such officer's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or are contemplated by the Commission.
(i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the Company's most recent unaudited latest audited financial statements contained included in, or incorporated by reference in, the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Disclosure Documents;
5.1.10 Prospectus or (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Debt Securities as contemplated by the Prospectus.
(d) The Underwriters shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at received opinions, dated the Closing (Date, of Xxxxxxx X. Xxxxxxxxxx, Esq., General Counsel to the Company, and Xxxxxx, Xxxxxx & Xxxxxxx, counsel to the Company, substantially in the form attached hereto as Exhibit A-1 and A-2, respectively. Insofar as such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of opinions involve factual matters, such date); and
5.1.11 there shall be no injunctioncounsel may rely, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent counsel to the Underwriters deems proper, upon certificates of officers of the Company, its subsidiaries and certificates of public officials.
(e) The Underwriters shall have received an opinion, dated the Closing Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP, counsel to the Underwriters as to such matters as the Underwriters shall reasonably request. In rendering such opinion, counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States or the State of New York, provided that any such representation or warranty relates reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to a particular datethe Underwriters. Insofar as such opinions involve factual matters, such representation or warranty counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the Company, its subsidiaries and certificates of public officials.
(f) On the Closing Date, the Debt Securities shall be true rated at least "B2" by Xxxxx'x Investor Service, Inc. ("Moody's") and correct in all respects as "BB" by Standard & Poor's Rating Services, a division of that particular dateMcGraw Hill, Inc. ("S&P");
5.2.2 each Investor shall have complied with or performed all of , and the agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by such Investor on or before the Closing;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company; and
5.2.5 each Investor Company shall have delivered to the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at Underwriters a letter dated the Closing Date, from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Debt Securities have such ratings; and on or prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given on or after the date hereof of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by wire transfer any "nationally recognized statistical rating organization" as such term is defined by the Commission for the purposes of immediately available fundsRule 436(g)(2) under the Securities Act; no public announcement shall have been made that any such organization has under surveillance or review their ratings of the Debt Securities or any other debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), and if, in any such case, the effect thereof in the reasonable judgment of the Underwriters makes it impracticable or inadvisable to proceed with the purchase of the Debt Securities.
(g) At the time of the execution of this Agreement, the Underwriters shall have received a letter, dated such date, in form and substance reasonably satisfactory to them, from Deloitte & Touche LLP, independent public accountants of the Company, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information, including the financial information contained or incorporated by reference in the Registration Statement as identified by the Representative.
(h) At the Closing Date the Representative shall have received from Deloitte & Touche LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Section.
(i) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by U.S. federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such), including, without limitation, as a result of terrorist activities after the date hereof, as to make it, in the judgment of the Underwriters, impracticable or inadvisable to proceed with the offering or delivery of the Debt Securities being delivered on such Closing Date on the terms and in the manner contemplated in the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Great Atlantic & Pacific Tea Co Inc)
Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's The several obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Underwriters hereunder on each Closing Date are subject to the following events as conditions:
(a) Subsequent to the execution and delivery of the Underwriting Agreement and prior to each Closing Date:,
5.1.1 (i) there shall not have occurred any downgrading in the rating accorded any securities of the Company or a Trust by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act and no such organization shall have revised its public announcements that it has under surveillance or review, with possible negative implications, its rating of any securities of the Company or a Trust; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the financial condition or results of operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus, that, in the judgment of the Manager, is material and adverse and that makes it, in the judgment of the Manager, impracticable to market the Designated Securities on the terms and in the manner contemplated in the Prospectus.
(b) The Manager shall have received on each Closing Date a certificate, dated such Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (a)(i) above and to the effect that the representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents shall be are true and correct in all material respects as of such date as if made on such date (except Closing Date and that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have has complied with or performed in all material respects all of the agreements, obligations agreements and satisfied all of the conditions set forth in this Agreement and in the other Transaction Documents that are required on its part to be complied with performed or performed by the Company satisfied on or before such Closing Date. The officer signing and delivering such certificate may rely upon the Closing;best of his knowledge as to proceedings threatened.
5.1.3 the (c) The Manager shall have received on each Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that dated such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard signed by a regular trustee of the Designated Trust, to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be the Designated Trust contained in this Agreement are true and correct in all material respects as of such date as if made on such date (except Closing Date and that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have Designated Trust has complied with or performed all of the agreementsagreements and satisfied all of the conditions on its part to be performed or satisfied on or before such Closing Date. The regular trustee signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on each Closing Date an opinion of counsel for the Company and the Designated Trust, obligations and conditions dated such Closing Date, to the effect set forth in this Agreement that are required Exhibit A-1.
(e) The Manager shall have received on each Closing Date an opinion of special Delaware counsel for the Company and the Designated Trust, dated such Closing Date, to be complied with or performed by the effect set forth in Exhibit A-2.
(f) The Manager shall have received on each Closing Date an opinion of counsel for the Underwriters, dated such Investor Closing Date, to the effect set forth in Exhibit B.
(g) The Manager shall have received on or before the Closing;
5.2.3 there shall be no injunctiondate hereof and each Closing Date a letter, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is dated such date, in effect that restrains or prohibits form and substance satisfactory to the consummation Manager, from the Company's independent public accountants, containing statements and information of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each of the Transaction Documents type ordinarily included in accountants' "comfort letters" to which it is a party and delivered the same underwriters with respect to the Company; and
5.2.5 each Investor shall have delivered to financial statements and certain financial information contained in or incorporated by reference into the Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsProspectus.
Appears in 1 contract
Samples: Underwriting Agreement (RJR Nabisco Holdings Capital Trust Vi)
Conditions to Closing. 5.1 Conditions The following shall be conditions precedent to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor effectiveness of each of the following events as of the Closing Datethis Agreement:
5.1.1 (a) the representations and warranties of AFC, AmeriCredit and the Company Issuer set forth or referred to in this Agreement and in the other Transaction Documents Article IV hereof shall be true and correct in all material respects as of such date as if made on such date the Closing Date (except that to the extent that any such representation or warranty relates for representations and warranties which relate to a particular specific date, such representation or warranty which shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to be complied with or performed by the Company on or before the Closing;
5.1.3 the Closing Date shall occur on a date that is not later than February 10, 2004;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being understood that such Investor may rely on such certificate as though it were a representation and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.1.5 hereto;
5.1.6 the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State of the State of Delaware, and shall be in full force and effect;
5.1.9 there shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect on the Closing Date and without regard to any restriction on the ability of an Investor to convert Preferred Stock or exercise the Warrants as of such date), and no event which of itself or with the giving of notice or lapse of time, or both, would constitute a Termination Event shall have occurred and be continuing on the Closing Date;
(b) the Fee Letters and the Supplemental Fee Letter shall have been executed and delivered by the Sellers to the Administrative Agent; and
5.1.11 there (c) the Administrative Agent and the Agents shall have received on the Closing Date the following items, each of which shall be no injunction, restraining order or decree in form and substance satisfactory to the Agents:
(i) an Officer’s Certificate of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits AFC confirming the consummation satisfaction of the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions conditions set forth in clause (a) (as to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date)AFC only) above;
5.2.2 each Investor shall have complied with or performed all (ii) an Officer’s Certificate of AmeriCredit confirming the satisfaction of the agreements, obligations and conditions set forth in this Agreement that are required clause (a) (as to be complied with or performed by such Investor on or before the Closingrepresentations and warranties of AmeriCredit only) above;
5.2.3 there shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation (iii) an Officer’s Certificate of the transactions contemplated hereby, by Issuer confirming the other Transaction Documents or by satisfaction of the Certificate conditions set forth in clause (a) (as to representations and warranties of Designationthe Issuer only) above;
5.2.4 each Investor shall have executed (iv) a copy of (A) the charter and by-laws of, and an incumbency certificate with respect to its officers executing any of the Related Documents on the Closing Date on behalf of, each of AmeriCredit and AFC, certified by an authorized officer, and (B) resolutions of the Transaction Board of Directors (or an authorized committee thereof) of each of AmeriCredit and AFC with respect to the Related Documents to which it is party, certified by an authorized officer;
(v) a party and delivered the same certificate issued no earlier than 30 days prior to the CompanyClosing Date by an appropriate Governmental Authority evidencing the legal existence and good standing of each of AFC, the Issuer and AmeriCredit;
(vi) the favorable written opinions of counsel for AFC, AmeriCredit, and the Issuer, addressed to the Administrative Agent and each Agent and Class B Purchaser, or accompanied by a letter providing that the Administrative Agent and each Agent and Class B Purchaser may rely on such opinions as if they were addressed to them, and dated the Closing Date, covering general corporate matters, the due execution and delivery of, and the enforceability of, each of the Related Documents to which the AFC, AmeriCredit and the Issuer is party, true sale, bankruptcy, bank insolvency, security interest and tax matters and such other matters as the Administrative Agent or any Agent may request; provided, that certificate of title opinions with respect to Financed Vehicles located in California and Florida shall be delivered to the Administrative Agent and the Agents within fifteen calendar days of the Closing Date;
(vii) an executed copy of the Sale and Servicing Agreement, the Indenture, the Custodial Agreement, the Trust Agreement and the Master Sale and Contribution Agreement;
(viii) evidence satisfactory to the Administrative Agent that financing statements duly executed by AmeriCredit, the Issuer and AFC or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrative Agent or any Agent or Class B Purchaser, desirable under the Uniform Commercial Code of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the Related Documents have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid;
(ix) counterparts of this Agreement (whether by facsimile or otherwise) executed by each of the Issuer, the Sellers, the Servicer, the Administrative Agent and Noteholders representing the Required Class B Owners and Required Class B Purchasers; and
5.2.5 each Investor (x) such additional documents, instruments, certificates or letters as the Administrative Agent or any Agent or Class B Purchaser may reasonably request.
(d) the Class A Notes, the Class B Notes and the Class C Notes shall have delivered been duly issued in accordance with the Sale and Servicing Agreement and the Indenture and the Net Spread Reserve Account and the Collateral Account shall have been established with the Trustee;
(e) the Sellers shall have paid all fees payable on or before the date of such borrowing to the Company Administrative Agent (for its own account or for the Purchase Price for Preferred Stock account of the initial Class B Purchasers and Agents) described in the Supplemental Fee Letter and all reasonable and appropriately invoiced costs and expenses of the Administrative Agent and the Warrants being purchases initial Agents and Class B Purchasers payable by it at the Sellers, to the extent provided herein, in connection with the transactions contemplated hereby;
(f) the Administrative Agent and the Agents shall have received the following:
(i) within 45 days of the Closing Date a report by wire transfer nationally recognized independent certified public accountants ( the “Independent Accountants”) on the results of immediately available fundsan audit performed by them which report is in form and substance satisfactory to each Agent; and
(ii) the duly executed Class B Note(s) registered in the name of each Agent as nominee on behalf of the Class B Owners in its Purchaser Group.
(g) evidence satisfactory to each initial CP Conduit that its purchase of Class B Notes hereunder will not result in a reduction or withdrawal of the rating of its or its related financing conduit’s Commercial Paper Notes by Moody’s, Standard & Poor’s or any other nationally recognized rating agency rating its Commercial Paper Notes.
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Conditions to Closing. 5.1 Conditions to Investors' Obligations at the Closing. Each ---------------------------------------------------------- Investor's The several obligations to effect the Closing, including without limitation its obligation to purchase the Preferred Stock and Warrants at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Underwriters hereunder are subject to the following events as conditions:
(a) No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Subsequent to the execution and delivery of the Underwriting Agreement and prior to the Closing Date:, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
5.1.1 (c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (b) above and to the effect that the representations and warranties of the Company set forth contained in this Agreement and in the other Transaction Documents shall be are true and correct in all material respects as of such date as if made on such date (except the Closing Date and that to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.1.2 the Company shall have has complied with or performed in all material respects all of the agreements, agreements and satisfied all of the obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required on its part to be complied with performed or performed by the Company satisfied on or before the Closing;Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
5.1.3 (d) The Manager shall have received on the Closing Date shall occur on a date that is not later than February 10opinions of Piper & Marbury, 2004;
5.1.4 the Company shall have delivered Maryland counsel to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of the Company, certifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the ClosingXxxxx X. Xxxxxx, it being understood that such Investor may rely on such certificate as though it were a representation Esq., Vice President and warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated as of such datethe Closing Date, in substantially to the form effect set forth on Exhibit 5.1.5 hereto;
5.1.6 in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the Company shall have delivered duly executed certificates representing the Preferred Stock and the Warrants being purchased by such Investor;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have delivered evidence reasonably satisfactory to the Investors confirming that the Certificate of Designation shall have been duly authorized and adopted by all requisite corporate action, shall have been duly filed with the Secretary of State laws of the State of DelawareCalifornia and the federal law of the United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & Xxxxxxx, and Xxxxx Xxxx & Xxxxxxxx may rely, as to matters governed by laws other than the laws of the State of New York and the federal law of the United States of America, on an opinion of Piper & Marbury, in each case so long as such opinion shall be dated the Closing Date and in form and substance satisfactory to the Manager, and shall be in full force and effect;expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
5.1.9 there (e) The Manager shall have been no material adverse change in the Company's consolidated business or financial condition since the date of the Company's most recent unaudited financial statements contained in the Disclosure Documents;
5.1.10 the Company shall have authorized and reserved for issuance at least one hundred and fifty percent (150%) of the aggregate number of shares of Common Stock issuable upon conversion of all of the Preferred Stock and exercise of all of the Warrants to be issued at the Closing (such number to be determined using the Conversion Price and Exercise Price in effect received on the Closing Date and without regard to any restriction on an opinion of special counsel for the ability Underwriters (the selection of an Investor to convert Preferred Stock or exercise the Warrants as of such date); and
5.1.11 there whom shall be no injunction, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the consummation of the transactions contemplated hereby, approved by the other Transaction Documents or by the Certificate of Designation.
5.2 Conditions to Company's Obligations at the Closing. The Company's ---------------------------------------------------- obligations to effect ), dated the Closing are conditioned upon the fulfillment or waiver by the Company of each of the following events as of the date of the Closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all material respects as of such date as if made on such date (except that Date, to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct in all respects as of that particular date);
5.2.2 each Investor shall have complied with or performed all of the agreements, obligations and conditions effect set forth in this Agreement that are required paragraphs (ii), (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in Exhibit C. In giving such opinion, such counsel may rely, as to matters governed by laws other than the federal law of the United States of America, on an opinion or opinions of local counsel satisfactory to the Manager, so long as each such opinion shall be dated the Closing Date and in form and substance satisfactory to the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters. _______________ (5) References to be complied with or performed by such Investor included if the Offered Securities are convertible.
(f) The Manager shall have received on or before the Closing;
5.2.3 there shall be no injunctionClosing Date a letter, restraining order or decree of any nature of any court or Government Authority of competent jurisdiction that is dated the Closing Date, in effect that restrains or prohibits form and substance satisfactory to the consummation Manager, from the Company's independent public accountants, containing statements and information of the transactions contemplated hereby, type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the other Transaction Documents or by the Certificate of Designation;
5.2.4 each Investor shall have executed each Prospectus. [The several obligations of the Transaction Documents Underwriters to which it is a party and delivered the same purchase Additional Securities hereunder are subject to delivery to the Company; and
5.2.5 each Investor Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall have delivered reasonably request relating to the Company issuance of the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing by wire transfer of immediately available fundsAdditional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Equity Underwriting Agreement (Sunamerica Capital Trust Iv)
