Conditions to Closing. The several obligations of the Underwriters hereunder are subject to the following 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. (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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened. (d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters. (e) The Manager shall have 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 (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 included if the Offered Securities are convertible. (f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional 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)
Conditions to Closing. The several obligations occurrence of the Underwriters hereunder are Closing Date is subject to the satisfaction on such date of the following conditionsconditions precedent:
(a) No stop order suspending The Administrative Agent shall have received from each party hereto or thereto either (i) a counterpart of this Agreement and the effectiveness Guarantee Agreement signed on behalf of such party or (ii) evidence satisfactory to the Registration Statement is in effect, Administrative Agent (which may include a facsimile transmission or electronic transmission of a “pdf” or similar copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of this Agreement and no proceedings for such purpose are pending before or threatened by the CommissionGuarantee Agreement.
(b) Subsequent to the execution and delivery The Administrative Agent shall have received a Note executed by each Borrower in favor of the Underwriting Agreement and each Lender requesting a Note, provided that such request is made at least three Business Days 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.
(c) The Manager Administrative Agent shall have received on each of the Closing Date following:
(i) a customary certificate, dated the Closing Date and signed by an executive officer a Responsible Officer on behalf of the Company, to (i) confirming satisfaction of the effect conditions set forth in clause Sections 4.2(a) and 4.2(b) and (bii) above and certifying that there 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 effect that the representations and warranties business, results of operations, property or financial condition of the Company contained in this Agreement are true and correct its Subsidiaries, taken as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.a whole; and
(dii) The Manager shall have received on the Closing Date opinions of Piper & Marburya customary certificate, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 signed by a secretary on behalf of each Borrower, attaching and substance satisfactory to the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the type ordinarily included in accountants' "comfort letters" to underwriters providing customary certifications with respect to the financial statements organizational documents and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations good standing of such Borrower, resolutions authorizing execution, delivery and performance of the Underwriters to purchase Additional Securities hereunder are subject to delivery to Loan Documents and the Manager on transactions contemplated thereby by such Borrower and the Option Closing Date incumbency of the Responsible Officers of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersBorrower.
Appears in 1 contract
Conditions to Closing. The several 5.1 Conditions to Marshall's Obligations at Closing. Marshall's ----------------------------------------------- obligations at the Closing, including without limitation its obligation to exchange the Series B Preferred Stock for the Series B-2 Preferred Stock, are conditioned upon the satisfaction by the Company (or waiver by Xxxxxxxx) of each of the Underwriters hereunder are subject to following events as of the following conditionsExchange Date:
(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.
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct in all material respects as of the Closing Date and that such date as if made on such date;
5.1.2 the Company has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon Closing;
5.1.3 the best of his knowledge as to proceedings threatened.Exchange Date shall occur on a date that is not later than September 29, 2000;
(d) The Manager 5.1.4 the Company shall have received on the Closing Date opinions delivered to Xxxxxxxx a certificate, signed by an officer of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxcertifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, Esq., Vice President it being understood that Xxxxxxxx may rely on such certificate as though it were a representation and General Counsel-- Corporate Affairs warranty of the Company made herein;
5.1.5 the Company shall have delivered to Xxxxxxxx an opinion of counsel for the Company, and Xxxxx Xxxx & Xxxxxxxxdated as of such date, special counsel to in substantially the Company, dated the Closing Date, to the effect 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 being exchanged;
5.1.7 the Company shall have executed and delivered the Registration Agreement;
5.1.8 the Common Stock shall be listed for trading on the Nasdaq National Market and no suspension of trading in Exhibits Athe Common Stock on such market shall have occurred and be continuing as of the Exchange Date;
5.1.9 the Company shall have authorized and reserved for issuance the number of shares of Common Stock required to be reserved under paragraph 4.5 hereof, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than shall have provided Xxxxxxxx with reasonable evidence thereof;
5.1.10 the laws Company shall have duly filed the Series B-2 Articles of Amendment with the Secretary of State of the State of California Colorado, and provided Xxxxxxxx with reasonable evidence of such filing and the federal law effectiveness thereof; 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 business, operations, financial condition, properties, prospects or results of operation 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersCompany.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. 1. The several obligations obligation of each Investor to purchase and pay for the Underwriters hereunder are Shares being purchased by it on the Closing Date is, at its option, subject to the satisfaction, on or before such date, of the following 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.
(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 contained in this Agreement are Section B hereof shall be true and correct on and as of the Closing Date with the same effect as though such representations and that warranties had been made on and as of such date, and the Company has complied with all of shall have certified to such effect to the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.Investors;
(db) The Manager Investors shall have received on the Closing Date opinions of Piper from Shearman & MarburySterling, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & XxxxxxxxXxxxxxx Xxxxxxxxxxx, special counsel to 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 effect set forth in Exhibits Investors;
(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 (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, respectively. In giving such opinion, Xx. Xxxxxx may rely, as and (D) a good standing certificate with respect to matters governed by laws other than the laws Company from the Secretary of State (or similar official) of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.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;
(f) On the Closing Date, the Company shall have executed and delivered the Registration Rights Agreement; and
(g) The Manager Company shall have received Subscriptions from Investors totalling not less than $9,500,000.
2. The obligation of the Company to issue and sell the Shares being issued and sold by it on the Closing Date an opinion is, at its option, subject to the satisfaction, on or before such date, of special counsel for the Underwriters following conditions:
(a) The representations and warranties of the selection of whom Investors contained in Section C hereof shall be approved by the Company), dated the Closing Date, to the effect set forth in paragraphs (ii), (iii) true and (iv) [correct on 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 with the same effect as though such representations and in form warranties had been made on and substance satisfactory to the Manager, and shall expressly permit the Underwriters to rely thereon as if of such opinion were addressed to Underwriters. _______________ (5) References to be included if the Offered Securities are convertible.date; and
(fb) The Manager Company shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Manager, Subscriptions from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersInvestors totalling not less than $9,500,000.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are subject SECTION 5.1. Conditions to the following conditionsCompany's Obligation to Sell the Shares and the Warrants. The Purchaser understands that the Company's obligation to issue and sell the Shares and the Warrants is conditioned upon:
(a) No stop order suspending Delivery by the effectiveness Purchaser to the Company of a duly executed copy of this Agreement and the Registration Statement is Rights Agreement and the Purchase Price, in effectcash, and no proceedings for such purpose are pending before or threatened by the Commission.in full;
(b) Subsequent to the execution and delivery The accuracy as 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, date hereof of the Company representations and its subsidiarieswarranties of the Purchaser contained in this Agreement, taken as a whole, from that set forth in and performance by the Prospectus.Purchaser of all covenants and agreements of the Purchaser required to be performed by it on or before the date hereof; and
(c) The Manager shall have received continued listing of the Common Stock on the Closing Date a certificate, dated Nasdaq National Market through the Closing Date and signed by an executive officer of the Company, date hereof.
SECTION 5.2. Conditions to the effect set forth in clause Purchaser's Obligation to Purchase the Shares and the Warrants. The Company understands that the Purchaser's obligation to purchase the Shares and the Warrants is conditioned upon:
(a) Delivery by the Company to the Purchaser of a duly executed copy of this Agreement, the Warrant Agreement and the Registration Rights Agreement;
(b) above and Delivery of certificates evidencing the Shares to the effect that Purchaser;
(c) The accuracy as of the date hereof of the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that performance by the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing date hereof of all covenants and delivering such certificate may rely upon agreements of the best of his knowledge as Company required to proceedings threatened.be performed by it on or before the date hereof; and
(d) The Manager shall have received continued listing of the Common Stock on the Closing Date opinions of Piper & Marbury, Maryland counsel to Nasdaq National Market through the Company, Xxxxx X. Xxxxxx, Esqdate hereof., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several 5.1 Conditions to each Investor’s Obligations at the Closing. Each Investor’s obligations to effect the Closing, including, without limitation, its obligation to purchase the Securities 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 Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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 and the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 Closing Date 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 has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement and in the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon Closing;
5.1.3 the best of his knowledge as to proceedings threatened.
(d) The Manager Company shall have received on the Closing Date opinions delivered to such Investor (i) an opinion of Piper & Marbury, Maryland New York counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in the form attached hereto as Exhibit D-1, and substance satisfactory to the Manager, from (ii) an opinion of Florida counsel for the Company's independent public accountants, containing statements and information dated as of the type ordinarily included Closing Date, in accountants' "comfort letters" the form attached hereto as Exhibit D-2;
5.1.4 the Company shall have executed and delivered to underwriters with respect 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 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 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;
5.1.7 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 and certain financial information contained in the Disclosure Documents; and
5.1.8 there shall be no injunction, restraining order or incorporated by reference into decree of any nature of any court or Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the Prospectus. [The several obligations consummation of the Underwriters to purchase Additional Securities hereunder are subject to delivery to transactions contemplated hereby and by the Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersother Transaction Documents.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters Allied Capital to enter into this Agreement and to perform its obligations hereunder are is subject to the satisfaction of the following conditionsconditions on or prior to the Closing Date:
(a) No stop order suspending the effectiveness The representations and warranties set forth in Article IV hereof shall be true and correct on and as of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the CommissionClosing Date.
(b) Subsequent 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:
(i) a favorable written opinion of counsel to the execution Credit Parties (A) dated the Closing Date, (B) addressed to Allied Capital and delivery (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 Underwriting Agreement other Loan Documents, executed by each of the parties thereto (other than Allied Capital);
(iii) for each Credit Party: (A) a copy of the certificate or articles of incorporation or similar organizational documents, including all amendments thereto, of such Credit Party, certified as of a recent date by the Secretary of State or other appropriate agency of the jurisdiction of its organization, and a certificate as to the good standing of such Credit Party as of a recent date, from such Secretary of State or other appropriate agency; (B) a certificate of the Secretary or Assistant Secretary of such Credit Party dated the Closing Date and certifying (1) that attached thereto is a true and complete copy of the by-laws or similar operational documents or agreements of such Credit Party as in effect on the Closing Date and at all times since a date prior to 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 certificate of good standing furnished pursuant to clause (A) above, and (4) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such 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, 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.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Companyincluding, to the effect set forth in clause (b) above and to the effect that the representations and warranties extent invoiced, reimbursement or payment of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part out-of-pocket expenses required to be performed reimbursed or satisfied on paid by the Borrowers hereunder or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.under any other Loan Document;
(dv) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President Audited Financials and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may relyInterim Financials, as to matters governed by laws other than the laws of the State of California 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, described 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersSection 4.6; and
(vi) insurance certificates evidencing compliance with Section 6.2.
(e) The Manager Credit Parties shall have received on entered into the Closing Date an opinion of special counsel for transaction documents with respect to the Underwriters (the selection of whom Senior Credit Facility and Allied Capital shall be approved by provided a copy of the Company), dated the Closing Date, documentation relating thereto;
(f) After giving effect to the effect set forth transactions contemplated hereby, the Credit Parties and their Subsidiaries shall not have outstanding any Indebtedness other than (i) the Senior Debt in paragraphs outstanding principal amount of not 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.
(g) No event that has or reasonably would be expected to have a Material Adverse Change shall have occurred since December 31, 2003.
(h) Allied Capital shall have received all necessary corporate approvals of the Transaction, and (vii) and (viii)](5) in Exhibit A and paragraphs all regulatory requirements applicable to Allied Capital shall have been satisfied.
(i) through (iv) in Exhibit C. In giving such opinionAllied Capital shall be reasonably satisfied that, such counsel may rely, as to matters governed by laws other than upon the federal law filing of the United States of AmericaFinancing Statements with the appropriate Governmental Authorities, on an opinion or opinions of local counsel satisfactory will hold a perfected Lien in the Collateral described respectively therein, subject only 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 included if the Offered Securities are convertiblePermitted Liens.
(fj) The Manager Allied Capital shall have received on from the Closing Date a letter, dated the Closing DateParent Company, in a form and substance satisfactory to Allied Capital, the ManagerWarrant Amendments.
(k) Allied Capital shall have received such other documents, from the Company's independent public accountants, containing statements instruments 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall Allied Capital may reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersrequest.
Appears in 1 contract
Conditions to Closing. 7.1 The several obligations following are conditions to the completion of the Underwriters hereunder are subject Underwriters’ obligations as contemplated in this Agreement, which conditions shall have been fulfilled by the Company, as applicable, on or prior to the following conditionsClosing Time, other than as may be waived in writing in whole or in part by the Underwriters:
(a) No stop order suspending the effectiveness board of directors of the Registration Statement is in effect, Company will have authorized and no proceedings for such purpose are pending before or threatened by approved the Commission.Transaction Documents and the Offering and all matters relating to the foregoing;
(b) Subsequent 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 Underwriting 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 prior 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, there shall 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 have occurred any material adverse changesubject 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 any development 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 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 prospective material adverse change, purchase and sale or a repurchase and resale in the condition, financial course of or otherwise, incidental to a distribution;
vii) no unusual effort is made to prepare the market or in to create a demand for the earnings, business or operations, securities that are the subject of the Company and its subsidiaries, taken as trade;
viii) no extraordinary commission or consideration is paid to a whole, from that set forth person or company in respect of the Prospectus.trade; and
(cix) The Manager shall have received on if the Closing Date a certificate, dated the Closing Date and signed by holder is an executive insider or officer of the Company, the holder has no reasonable grounds to the effect set forth in clause (b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and believe that the Company is in default of securities legislation;
(xiii) Computershare Trust Company of Canada, at its office in Toronto, Ontario, has complied with all been duly appointed by the Company as the registrar and transfer agent of the agreements Common Shares and satisfied all of the obligations on its part to be performed subscription receipt agent under the Subscription Receipt Agreement; and
(xiv) such other matters as the Underwriters or satisfied on or before the Closing Date. The officer signing and delivering such certificate their counsel may rely upon the best of his knowledge as to proceedings threatened.reasonably request;
(d) The Manager the Underwriters shall have received on a favourable legal opinion addressed to the Underwriters, in form and substance satisfactory to the Underwriters’ counsel, acting reasonably, dated the Closing Date opinions of Piper & MarburyDate, Maryland from local counsel to the Company, Xxxxx X. Xxxxxxwhich counsel in turn may rely, Esq.as to matters of fact, Vice President on certificates of public officials (as appropriate), with respect to title matters and General Counsel-- Corporate Affairs for ownership interests of each of the CompanyMaterial Properties;
(e) the Underwriters shall have received favourable legal opinions addressed to the Underwriters, in form and Xxxxx Xxxx & Xxxxxxxxsubstance satisfactory to the Underwriters’ counsel, special 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:
(i) as to the Material Subsidiary having been incorporated and 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 set forth in Exhibits Athat 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, B subject to the usual and Ccustomary assumptions, respectively. In giving such opinionlimitations and qualifications, Xx. Xxxxxx may rely, it being understood that no opinion will be expressed as to matters governed by laws other than the laws 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 State of California Company and the federal law 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 United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx Offering Documents shall have been executed and Xxxxx & Xxxxxxx, and Xxxxx Xxxx & Xxxxxxxx may rely, as to matters governed delivered 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 parties thereto in form and substance satisfactory to the ManagerUnderwriters and its counsel, and acting reasonably;
(k) the Company shall expressly permit have delivered to the Underwriters to rely thereon as if such opinion were addressed to Underwriters.the executed lock-up agreements contemplated by Section 4.1(m) hereof; and
(el) The Manager the Offering will have been conditionally approved by the TSX and the Underwriters shall have 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 (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 evidence satisfactory to the ManagerUnderwriters that all requisite approvals, so long as each such opinion shall be dated consents and acceptances of 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 appropriate regulatory authorities required to be included if obtained by the Offered Securities are convertibleCompany in order to complete the Offering have been made or obtained.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Americas Gold & Silver Corp)
Conditions to Closing. The several obligations of the Underwriters hereunder are subject to the following 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.
(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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Counsel--Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California and the federal law of the United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & XxxxxxxMarbury, 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (ii), (iii) and (iviii) [and (viiv) and (viii)](5vi)](8) in Exhibit A and paragraphs (i) through (ivvii) 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) 8) References to be included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6Securities.](9) _______________ (69) 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. The several Purchaser's obligations of the Underwriters --------------------- hereunder are subject to the fulfillment of the following conditions:conditions precedent. In the event that any of the conditions set forth below are not satisfied in all material respects, the Purchaser shall not have any obligation to purchase any of the 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) No stop order suspending the effectiveness Each 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.
(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 made by the Company contained in this Agreement are Seller hereunder shall be true and correct in all material respects as of the Closing Date and that no event shall have occurred which, with notice or the Company has complied with passage of time, would constitute a default under this Agreement.
(b) The Seller shall have delivered to the Purchaser all of the agreements Mortgage Loan Documents in accordance with Section 2.5 and satisfied all a complete Mortgage ----------- File with respect to each Mortgage Loan.
(c) Each of the obligations on its part terms and conditions set forth herein which are required to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon Date shall have been satisfied unless waived by the best of his knowledge as to proceedings threatenedprejudiced party(ies).
(d) The Manager Seller shall have received delivered to the Purchaser on or before the Closing Date opinions the following documents:
(1) a fully executed Agreement;
(2) the Mortgage Loan Schedule, which shall include, without limitation, the Stated Principal Balance of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California and the federal law of the United States of America, on each Mortgage Loan;
(3) 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 & Marburyexecuted Funding Schedule, 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.of Exhibit B --------- hereto;
(e4) The Manager shall have received on an Officer's Certificate, in the Closing Date an opinion form 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 (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. _______________ C --------- hereto; and
(5) References to be included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory such other documents related to the Manager, from the Company's independent public accountants, containing statements purchase and information sale of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to Mortgage Loans and the financial statements and certain financial information contained in or incorporated by reference into Servicing Rights as the Prospectus. [The several obligations of the 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 5 as such Manager shall Purchaser may reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Mortgage Loan Purchase and Interim Servicing Agreement (United Panam Financial Corp)
Conditions to Closing. The several obligations Underwriters have entered into this Certificate Purchase Agreement in reliance upon the representations and agreements of the Underwriters hereunder Corporation and the School Board herein and the performance by the Corporation and the School Board of their obligations hereunder, both as of the date hereof and 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:
(a) No stop order suspending at the effectiveness time of the Registration Statement is Closing (i) each of the Corporation Documents and the School Board Documents will be in effectfull force and effect and will not have been amended, 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 no proceedings for (iii) the School Board and the Corporation will have duly adopted and there shall be in full force and effect such purpose are pending before or threatened resolutions as, 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 Commission.Offering Statement;
(b) Subsequent the Underwriters shall have the right to cancel their obligations to purchase the Series 2012A Certificates, by notice from the Manager to the execution Corporation and delivery 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 Underwriting Agreement and prior United States or adopted by either House thereof or favorably reported for passage to either House of the Closing Date, there Congress by any committee of such House to which such legislation shall not have occurred any material adverse changebeen 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 development involving a prospective material adverse change, in the condition, financial or otherwisecommittee of such House to which such legislation shall have been referred for consideration, or in the earnings, business or operations, a decision shall have been rendered by a court of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed United States or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 federal law 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 Americathe general character to be derived by the Corporation or by any similar body, or upon interest on an opinion obligations of the general character of the Ground Leases or opinions the Leases, or the tax treatment thereof for federal income tax purposes, or (in the case of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & XxxxxxxFlorida 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 of the transactions contemplated in connection herewith, and Xxxxx Xxxx & Xxxxxxxx may relythat, 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 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 to matters governed contemplated by laws other than the laws 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 State Securities and Exchange Commission or any other governmental authority having jurisdiction, or there shall be in force a suspension of trading in any outstanding securities of the School Board or the Corporation; or
(v) a general banking moratorium shall have 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 law or Florida agency or the Congress of the 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 of Americashall be rendered that, on an in the 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an opinion of special counsel for the Underwriters (Underwriters, has the selection effect of whom shall requiring the contemplated distribution of the Series 2012A Certificates or any action or instrument pertaining thereto to be approved by registered under the Company)Securities Act of 1933, dated as amended, or under Florida law, or of requiring any of the Closing DateTrust Agreements, or any instrument or act pertaining thereto, to be qualified under the effect set forth in paragraphs (ii)Trust Indenture Act of 1939, (iii) and (iv) [and as amended; or
(vii) and (viii)](5) there shall have been any materially adverse change 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 affairs 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing DateSchool Board that, in form and substance satisfactory to the Manager, from the Company's independent public accountants, containing statements and information reasonable judgement of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to Underwriters, materially and adversely affects the financial statements and certain financial information contained in market price or incorporated by reference into marketability of the Prospectus. [The several obligations Series 2012A Certificates or the ability of the Underwriters to purchase Additional Securities hereunder are subject to delivery enforce contracts for the sale of the Series 2012A Certificates; or
(viii) a supplement or amendment shall have been made to the Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating Offering Statement subsequent to the issuance date hereof that in the reasonable judgment of the Additional Securities.](6) _______________ (6) Include if a green shoe is Underwriters, materially and adversely affects the market price or the marketability of the Series 2012A Certificates or the ability of the Underwriters to be offered to Underwriters.enforce contracts for the sale of the Series 2012A Certificates; and
Appears in 1 contract
Samples: Certificate Purchase Agreement
Conditions to Closing. 12.1 The several obligations of the Underwriters hereunder are Purchaser to consummate the transactions contemplated hereby shall be subject to the satisfaction by the Company of each of the following conditionsconditions on or before the Closing Date, any one or more of which may be waived in writing by the Purchaser:
(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.
(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 contained set forth in this Agreement are delivered to the Purchaser by or on behalf of the Company shall be true and correct as if made on the Closing Date.
(b) Each of the Closing Date and that the Company has complied with all of the covenants, agreements and satisfied all of the obligations on its part conditions to be performed and satisfied by the Company pursuant to this Agreement at or satisfied on or before the prior to Closing Date. The officer signing shall have been duly performed and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedsatisfied.
(dc) The Manager Purchaser shall have received on the Closing Date opinions of Piper from Folex, Xxag & MarburyXliox XXX, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance scope satisfactory to the Manager, from the Company's independent public accountants, containing statements Purchaser and information of the type ordinarily included in accountants' "comfort letters" to underwriters its counsel with respect to the financial statements due authorization of the transactions contemplated hereby, the valid issuance of the Shares, exempt from registration and certain financial information contained such other matters as are reasonable and customary in or incorporated by reference into the Prospectus. [transactions contemplated hereby.
(d) At the request of Purchaser, the Company shall have delivered to Purchaser such other certificates, instruments and documents as are reasonable and customary in the transactions contemplated hereby.
13.2 The several obligations of the Underwriters Company to purchase Additional Securities hereunder are consummate the transactions contemplated hereby shall be subject to delivery to the Manager satisfaction by the Purchaser of each of the following conditions on or before the Closing Date, any one or more of which may be waived in writing by the Company:
(a) The representations and warranties of the Purchaser set forth in this Agreement shall be true and correct as if made on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance Date.
(b) Each of the Additional Securities.](6) _______________ (6) Include if a green shoe is covenants, agreements and conditions to be offered performed and satisfied by the Purchaser pursuant to Underwritersthis Agreement at or prior to Closing shall have been duly performed and satisfied.
(c) The Purchaser shall have paid the Purchase Price in accordance with Section 3.
Appears in 1 contract
Conditions to Closing. The several obligations obligation of each Lender to make a Loan on the Closing Date is subject to satisfaction of the Underwriters hereunder are subject to following conditions precedent at or substantially simultaneously with the following conditionsmaking of such Loan:
(a) No stop order suspending the effectiveness The Agent shall have received each of the Registration Statement is 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 effectthe case of certificates of governmental officials, a recent date before the Closing Date) and no proceedings for such purpose are pending before or threatened 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 CommissionCompany 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) Subsequent to the execution and delivery The Agent shall have received:
(i) copies of the Underwriting Agreement and prior to resolutions of the Closing Dateboard of directors, there shall not have occurred any material adverse changeauthorized subcommittee thereof, or any development involving other equivalent body of each Obligor authorizing the Transactions to which such Obligor is a prospective material adverse changeparty, 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.
(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 contained in this Agreement are true and correct certified as of the Closing Date and that by the Company has complied with all 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 agreements Secretary or Assistant Secretary of each Obligor (or in the case of a limited liability company, of its manager) certifying the names and satisfied all true signatures of the obligations on its part officers of such Obligor authorized to execute, deliver and perform, as applicable, this Agreement and all other Loan Documents to be performed or satisfied on or before the Closing Date. The officer signing and delivering delivered by such certificate may rely upon the best of his knowledge as to proceedings threatened.Obligor hereunder;
(diii) The Manager shall have received the articles or certificate of incorporation or equivalent document of each Obligor as in effect on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to certified by the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws Secretary of the State of California and the federal law its state of the United States incorporation or organization as 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.a recent date;
(eiv) The Manager shall have received the bylaws or equivalent document of each Obligor as in effect 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 certified by the effect set forth in paragraphs (ii), (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in Exhibit C. In giving Secretary or Assistant Secretary of such opinion, such counsel may rely, Obligor 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Manager, ; and
(v) a certificate of good standing or equivalent document for each Obligor from the Company's independent public accountantsSecretary of State (or similar, containing statements and information applicable Governmental Authority) of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in its state of incorporation or incorporated by reference into the Prospectus. [The several obligations organization as of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersrecent date.
Appears in 1 contract
Conditions to Closing. The several obligations obligation of the Underwriters hereunder are Lender to make the advance pursuant to Section 2.1 hereof shall be subject to the following conditions:
(a) No stop order suspending the effectiveness The representations of the Registration Statement is Corporation herein shall be true, complete and correct in effect, all material respects on the date hereof and no proceedings for such purpose are pending before or threatened by on and as of the Commission.Closing Date as if made on the Closing Date;
(b) Subsequent On the Closing Date, the Loan Documents shall be in full force and effect, assuming due authorization and execution by the other parties thereto, and shall not have been amended or supplemented except as may have been agreed to in writing by the execution and delivery of the Underwriting Agreement and Lender;
(c) At or 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.
(c) The Manager Lender shall have received on each of the Closing Date a following documents:
(i) This Agreement executed by an authorized officer of the Corporation;
(ii) The Series 2022 Note executed by an authorized officer of the Corporation;
(iii) A certificate, dated the Closing Date and signed Date, executed by an executive authorized officer of the CompanyCorporation, to the effect set forth in clause that (bA) above and to the effect that the representations and warranties of the Company Corporation contained in this Agreement are true and correct on the date hereof and on and as of the Closing Date as if made on the Closing Date; (B) the Resolution and that this Agreement are in full force and effect and have not been amended or supplemented except as may have been approved in writing by the Company has complied 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 best of their knowledge, threatened in any court to restrain or enjoin 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, or contesting or affecting the adoption and validity of the Resolution or the authorization, execution and delivery of the Loan Documents, or contesting the powers of the Board of Directors of the Corporation;
(iv) Certified copies of resolutions of the City and the Corporation authorizing execution, delivery and performance of all of the agreements Loan Documents and satisfied authorizing the borrowing hereunder, along with such certificates of existence, certificates of good standing and other certificates or documents as the Lender may reasonably require to evidence the Corporation’s authority;
(v) True copies of all organizational documents of the obligations on its part to be performed Corporation, including all amendments, restatements or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.supplements thereto;
(dvi) The Manager shall have received on the Closing Date opinions An opinion of Piper & Marbury, Maryland counsel to the Company, Corporation which shall specifically provide that (1) the Corporation is a validly existing non-profit corporation created by the City of Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel pursuant to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws Chapter 504 of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (ii), (iii) Act and (iv2) [the Corporation is duly authorized and (vii) empowered to execute, deliver 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 perform 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 included if the Offered Securities are convertibleLoan Documents.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Loan Agreement
Conditions to Closing. 5.1 Conditions to the Trustee Is Obligation at ------------------------------------------ Closing. The several obligations of the Underwriters Trustee hereunder are subject ------- to the fulfillment at or before the Closing of each of the following 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.
(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 contained in this Agreement are Section 3 hereof shall be true on and correct as of the Closing Date and that and, the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager Trustee shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Companybeen furnished with a certificate, dated the Closing Date, to such effect, signed by an authorized officer of UAL.
(b) The Trustee shall have received a cash contribution to the Plan at least equal to the Cash Amount.
(c) No order of any court or administrative agency shall be in effect set forth in Exhibits Awhich restrains or prohibits the transactions contemplated by this Agreement, B and Cno suit, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed action or other proceedings by laws any governmental body or other than person shall have been instituted which questions the laws validity or legality of the State transactions contemplated by this Agreement which suit, action or proceeding the Trustee reasonably determines, upon advice of California and counsel, is more likely than not to successfully challenge the federal law validity or legality of the United States of America, on an opinion transactions contemplated by this Agreement or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & Xxxxxxx, and Xxxxx Xxxx & Xxxxxxxx may rely, as to matters governed by laws other than otherwise result in a Material Adverse Effect.
(d) Neither the laws Trustee nor UAL shall have determined in good faith that the purchase of the State Shares would result in a "prohibited transaction" under ERISA or otherwise violate the provisions 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwritersapplicable law.
(e) The Manager Trustee shall have received UAL's most recent annual report 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 (ii), (iii) form 10-K 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, any subsequently filed Quarterly Reports 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 included if the Offered Securities are convertible.Form 10-Q.
(f) The Manager Trustee shall have received on the Closing Date a letterfrom Xxxxxxxxxxx & Xxxxxxxx, dated the Closing Date, in form and substance satisfactory counsel to the ManagerTrustee, an opinion in substantially the form set forth in Schedule 5.1(f) hereto.
(g) The Trustee shall have received from Xxxxxxxxx X. Xxxxx, Vice President-Law and Corporate Secretary, the Company's independent public accountants, containing statements and information of opinion in substantially the type ordinarily included form set forth in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.Schedule
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are Placement Agents under this Agreement to purchase the Notes will be subject to the following 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 date of the Underwriting this Agreement and prior to the Closing Date, ,
(i) there shall not have occurred any material adverse 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 material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from that set forth in the ProspectusPreliminary Memorandum that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated in the Final Memorandum.
(cb) The Manager You 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 (ba)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(dc) The Manager You shall have received on the Closing Date opinions an opinion of Piper & Marbury, Maryland counsel to the Company, Xxxxx Xxxx X. XxxxxxXxxxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to Counsel of the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.Exhibit A.
(ed) The Manager You shall have received on the Closing Date an opinion of special Pillsbury Madison & Sutro LLP, 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 (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 included if the Offered Securities are convertible.B.
(fe) The Manager You shall have received on the Closing Date a letteran opinion of Xxxx & Xxxxxxx, regulatory counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit C.
(f) You shall have received on the Closing Date an opinion of Shearman & Sterling, counsel for the Placement Agents, dated the Closing Date, in form and substance satisfactory to you.
(g) You shall have received on each of the Managerdate hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance reasonably satisfactory to you, from 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 or incorporated by reference into the Prospectus. [Final Memorandum.
(h) On the Closing Date, the Existing Credit Facility (as defined in the Final Memorandum) shall be prepaid in full, in accordance with a valid notice of prepayment, a copy of which shall have been delivered to you prior to the Closing Date, and replaced by the New Credit Facility as described in "Summary--The several obligations Refinancing" and "Use of Proceeds" in the Final Memorandum.
(i) The New Credit Facility (as defined in the Final Memorandum) shall be executed, effective and available for borrowing upon payment of the Underwriters Existing Credit Facility as contemplated above on the Closing Date and copies of such document shall have been delivered to purchase Additional Securities hereunder are subject you on the Closing Date.
(j) An amendment of the terms of the Company's Senior Subordinated Notes due 2005 as described in the Final Memorandum shall have been executed (a copy of which shall have been delivered to delivery you on or prior to the Manager on Closing Date) and at least 662/3% of the Option holders thereof shall have explicitly consented to the issuance by the Company of the Notes and the replacement of the Existing Credit Facility with the New Credit Facility.
(k) On the Closing Date Date, the Old Senior Notes (as defined in the Final Memorandum) shall be prepaid in full pursuant to a valid notice of prepayment (a copy of which shall have been delivered to you prior to the Closing Date).
(l) All required consents, waivers and agreements required to consummate the transactions described in "Summary--The Refinancing" and "Use of Proceeds" in the Final Memorandum shall have been obtained and copies of such opinionsconsent, waivers and agreements delivered to you on or prior to the Closing Date.
(m) You shall have received such other certificates and documents contemplated by this Section 5 as such Manager shall you or your counsel may reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersrequest.
Appears in 1 contract
Conditions to Closing. The several obligation of Allied to enter into this Agreement and to perform its obligations of the Underwriters hereunder are is subject to the satisfaction of the following conditionsconditions on or prior to the Closing Date:
(a) No stop order suspending the effectiveness The representations and warranties set forth in Article IV hereof shall be true and correct in all material respects on and as of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the CommissionClosing Date.
(b) Subsequent The Company and each Subsidiary Guarantor 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 Allied Investment, no Event of Default or Default shall have occurred and be continuing.
(c) Allied shall have received the following items:
(i) a favorable written opinion of counsel for the Company and the Subsidiary Guarantors (A) dated the Closing Date, (B) addressed to Allied, and (C) covering such matters relating to the execution Investment Documents and delivery the Allied Investment 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 Underwriting other Investment Documents, executed by each of the parties thereto (other than Allied);
(iii) the Warrants;
(iv) the Purchased Shares;
(v) the Shareholder Agreement (Allied), in form and substance acceptable to the parties;
(vi) the Assignment of Life Insurance Policies and accompanying questionnaires, duly executed by the Company, the insurer, and, if applicable, any other beneficiaries of the Assigned Life Insurance Policies;
(vii) the Subordination Agreement relating to the Senior Loan, duly executed by the Senior Lender Agent on behalf of the Senior Lenders;
(A) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Company and each Subsidiary Guarantor, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Company and each Subsidiary Guarantor as of a recent date, from such Secretary of State; (B) a certificate of the Secretary or Assistant Secretary of the Company and each Subsidiary Guarantor dated the Closing Date and certifying (1) that attached thereto is a true and complete copy of the by-laws of the Company or Subsidiary Guarantor, as applicable, as in effect on the Closing Date and at all times since a date prior to 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 Subsidiary 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 Subsidiary Guarantor have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (A) above other than pursuant to the Merger and the Merger Agreement, and (4) as to the incumbency and specimen signature of each officer executing any Investment Document or any other document delivered in connection herewith on behalf of the Company each Subsidiary 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 other documents as Allied may reasonably request; and
(ix) all amounts due and payable on or 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.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Companyincluding, to the effect set forth in clause (b) above and extent invoiced, reimbursement or payment of all out-of-pocket expenses required to the effect that the representations and warranties of be reimbursed or paid by the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed hereunder or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedunder any other Investment Document.
(d) The Manager After giving effect to the transactions contemplated hereby, the Company shall have received outstanding no Indebtedness other than (A) the Permitted Senior Debt, (B) the extension of credit under this Agreement, (C) Permitted Junior Debt listed on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the CompanySchedule 4.7, and Xxxxx Xxxx & Xxxxxxxx, special counsel to (D) the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California and the federal law of the United States of America, Indebtedness listed 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersSchedule 4.6.
(e) The Manager Allied shall have received on fully executed conformed copies of the Closing Date an opinion Merger Transaction Documents. The Merger shall have been consummated in accordance with the terms of special counsel for the Underwriters (Merger Transaction Documents, as evidenced by a copy of the selection certificate of whom shall be approved Merger, certified by the Company), dated the Closing Date, to the effect set forth in 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 Secretary of State of the United States State of AmericaDelaware. Without limiting the generality of the foregoing, on an opinion or opinions the closing of local counsel satisfactory the Senior Loan shall have occurred and the Senior Lenders shall have advanced at least $38,000,000 of the Senior Loan to consummate the Manager, so long as each such opinion shall be dated the Closing Date and in form and substance satisfactory to the ManagerMerger, and the TA Funds shall expressly permit have contributed at least $27,800,000 in redeemable preferred stock and $5,000,000 in convertible preferred stock to consummate the Underwriters to rely thereon as if such opinion were addressed to Underwriters. _______________ (5) References to be included if the Offered Securities are convertibleMerger.
(f) The Manager As of immediately prior to the effective time of the Merger, the holders of no more than five percent (5%) of the outstanding shares of common stock of the Company shall have received taken all required actions to assert appraisal rights under Section 262 of the Delaware General Corporation Law and not withdrawn or otherwise permitted to lapse such appraisal rights or demands therefor.
(g) All material legal requirements to this Agreement, the Debenture and the other Investment Documents and the Merger Transaction Documents shall have been completed to Allied's satisfaction.
(h) The existing Permitted Junior Debt listed on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory Schedule 4.7 shall have been subordinated to the Manager, from the Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Debenture except to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of extent Allied shall have expressly waived such opinions, certificates and documents contemplated by this Section 5 as such Manager subordination requirement.
(i) No event that has a Material Adverse Effect shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritershave occurred.
Appears in 1 contract
Conditions to Closing. The several obligations obligation of the Underwriters hereunder are Bank to enter into this Agreement shall be subject to the fulfillment (to the satisfaction of the Bank) of the following conditionsconditions precedent:
(a) No stop order suspending The Borrower shall have executed and delivered the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the CommissionNote.
(b) Subsequent The Borrower shall have:
(1) executed and delivered the Borrower Security Documents;
(2) executed and duly filed appropriate Uniform Commercial Code financing statements in order to enable the Bank to perfect and preserve its security interest in the Collateral;
(3) delivered to the execution and delivery Bank: (A) copies of, or certificates of the Underwriting Agreement and prior issuing companies with respect to, policies of insurance owned by the Borrower covering or in any manner relating to the Closing DateCollateral, 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.
(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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California and the federal law including insurance covering Collateral located outside of the United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & Xxxxxxxif any, and Xxxxx Xxxx & Xxxxxxxx may rely, as to matters governed by laws other than together with endorsements thereto which comply with the laws terms of the State of New York Borrower Security Agreement 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 are otherwise in form and substance satisfactory to the ManagerBank, naming the Bank as additional insured as its interests may appear; and shall expressly permit (B) evidence of the Underwriters to rely thereon as if such opinion were addressed to Underwriters.Borrower's liability insurance policies; and
(e4) The Manager otherwise duly complied with all of the terms and conditions of the Security Documents to be executed by it; and
(c) Counsel to the Borrower shall have received on the Closing Date an delivered its opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company)to, dated the Closing Date, to the effect set forth in 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 Bank.
(d) The Bank shall have received true and complete copies of the following, each certified as such in a certificate executed by an officer of the Borrower:
(1) All of the consents, approvals and waivers referred to on Exhibit B annexed hereto, except only those which, as stated on Exhibit B, shall not be delivered;
(2) The certificate of incorporation of the ManagerBorrower;
(3) The by-laws of the Borrower;
(4) All corporate action taken by the Parent and the Borrower to authorize the execution, delivery and shall expressly permit performance by the Underwriters Borrower of each of the Loan Documents to rely thereon as if such opinion were addressed to Underwriters. _______________ which it is a party pursuant hereto or in connection herewith;
(5) References to be included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the type ordinarily included in accountants' "comfort letters" to underwriters Good standing certificates with respect to the financial statements Borrower from the Secretary of State or other appropriate official of its state of incorporation and certain financial information contained each other state in or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.which it operates Stores; and
Appears in 1 contract
Conditions to Closing. The several 5.1 Conditions to Purchaser's Obligations at Closing. Each Purchaser's obligations at the Closing, including without limitation its obligation to purchase the Preferred Shares to be purchased by it hereunder, are conditioned upon the fulfillment of each of the Underwriters hereunder are subject to the following conditionsevents:
(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.
(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 contained set forth in this Agreement are shall be true and correct in all material respects as of the Closing Date and that of as if made on such date;
(b) the Company has shall have complied with or performed all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The Closing;
(c) the Company shall have delivered to such Purchaser a certificate, signed by an officer signing of the Company, certifying that the conditions specified in paragraphs (a) and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.(b) above have been fulfilled;
(d) The Manager the Company shall have received on the Closing Date opinions delivered to such Purchaser an opinion of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California and the federal law date 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 & MarburyClosing, in each case so long the form attached as 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.Exhibit 5.1;
(e) The Manager Company shall have received on filed the Closing Date an opinion Certificate with the Secretary 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 (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 State of the United States State of America, on an opinion or opinions of local counsel satisfactory to the Manager, so long as each Delaware and furnished 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 included if the Offered Securities are convertible.
Purchaser with a file-stamped copy thereof; (f) The Manager the Company shall have received on executed and delivered the Closing Date a letter, dated the Closing Date, Registration Rights Agreement;
(g) there shall have been no material adverse changes in form and substance satisfactory to the Manager, from the Company's independent public accountants, containing statements and information consolidated business or financial condition since the date of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the Company's most recent financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.Disclosure Documents;
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are subject following shall be conditions precedent to the following conditionseffectiveness of this Agreement:
(a) No stop order suspending the effectiveness representations and warranties of AFC, AmeriCredit and the Registration Statement is Issuer set forth or referred to in effectArticle IV hereof shall be true and correct in all material respects on the Closing Date (except for representations and warranties which relate to a specific date, which shall be true and correct as of such date), and no proceedings for such purpose are pending before event which of itself or threatened by with the Commission.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) Subsequent the Fee Letters and the Supplemental Fee Letter shall have been executed and delivered by the Sellers 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.Administrative Agent; and
(c) The Manager the Administrative Agent and the Agents shall have received on the Closing Date a certificatethe following items, dated the Closing Date and signed by an executive officer each of the Company, to the effect set forth in clause (b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 which shall be dated the Closing Date and in form and substance satisfactory to the ManagerAgents:
(i) an Officer’s Certificate of AFC confirming the satisfaction of the conditions set forth in clause (a) (as to representations and warranties of AFC only) above;
(ii) an Officer’s Certificate of AmeriCredit confirming the satisfaction of the conditions set forth in clause (a) (as to representations and warranties of AmeriCredit only) above;
(iii) an Officer’s Certificate of the Issuer confirming the satisfaction of the conditions set forth in clause (a) (as to representations and warranties of the Issuer only) above;
(iv) a copy of (A) the charter and by-laws of, and shall expressly permit an incumbency certificate with respect to its officers executing any of the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received Related Documents on the Closing Date on behalf of, each of AmeriCredit and AFC, certified by an opinion authorized officer, and (B) resolutions of special the 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 certificate issued no earlier than 30 days prior to the Closing 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 Underwriters (Issuer, addressed to the selection of whom shall be approved Administrative Agent and each Agent and Class A Purchaser, or accompanied by a letter providing that the Company)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 effect set forth in paragraphs (ii), (iii) Administrative Agent and (iv) [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)](5viii) 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 Exhibit 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 paragraphs 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
(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 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 Administrative Agent (for its own account or for the 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 initial Agents and Class A Purchasers payable by 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) through (iv) in Exhibit C. In giving such opinion, such counsel may rely, as to matters governed by laws other than the federal law within 45 days 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 a report by nationally recognized independent certified public accountants (the “Independent Accountants”) on the results of an audit performed by them which report is in form and substance satisfactory to each Agent; and
(ii) the Manager, and shall expressly permit duly executed Class A Note(s) registered in the Underwriters to rely thereon name of each Agent as if such opinion were addressed to Underwriters. _______________ (5) References to be included if nominee on behalf of the Offered Securities are convertibleClass A Owners in its Purchaser Group.
(fg) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance evidence satisfactory to the Manager, from the Company's independent public accountants, containing statements and information each initial CP Conduit that its purchase of Class A Notes hereunder will not result in a reduction or withdrawal of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in rating of its or incorporated its related financing conduit’s Commercial Paper Notes by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of such opinionsMoody’s, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersStandard & Poor’s or any other nationally recognized rating agency rating its Commercial Paper Notes.
Appears in 1 contract
Conditions to Closing. The several obligations of 8.1 F5 Finishes Closing Conditions F5 Finishes’ obligation to close the Underwriters hereunder are Transaction is subject to the satisfaction of each of the following conditionsconditions (the “F5 Finishes Closing Conditions”) at or prior to Closing:
(a) No stop order suspending the effectiveness of the Registration Statement is Shareholder’s representations and warranties in effectArticle 4, and no proceedings for such purpose are pending before as qualified or threatened limited 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, exceptions in the conditionSchedules to Article 4, financial or otherwise, or in the earnings, business or operations, of the Company are true and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(c) The Manager shall have received correct on the Closing Date a certificate, dated the as if made at and as of 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 other than representations and warranties that address matters as of the Company contained in this Agreement are a certain date, which were true and correct as of the Closing Date that date);
(b) Shareholder has executed and that the Company has complied with delivered all of the agreements 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 satisfied in all material respects all of the obligations other obligations, agreements and conditions under this Agreement that he is required to perform, comply with or satisfy at or prior to Closing;
(c) each Notice or filing listed on its part to be performed Schedule 4.5 has been duly given or satisfied made, and each Consent or Permit listed on or before the Closing Date. The officer signing Schedule 4.5 has been obtained and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.is in full force;
(d) The Manager shall F5 Finishes and Shareholder have received agreed on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California Financial Statements 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.Interim Financial Statements;
(e) The Manager shall have received on the Closing Date an opinion of special counsel Company’s adjusted earnings before interest, taxes, depreciation and amortization for the Underwriters (the selection of whom shall be approved by the Company)12-month period ended December 31, dated the Closing Date, to the effect set forth in 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 included if the Offered Securities are convertible.2018 was $764,039;
(f) The Manager consistent with Section 8.1(e), above, after Xxxxxx, LLP completes its audit of the Company, F5 Finishes is satisfied with the Company’s Financial Statements;
(g) no material adverse change in the Company’s assets, financial condition, operations, operating results or prospects has occurred since the date of this Agreement;
(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 received on the cash as of 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 an amount not less than $10,000; and
(m) closing of the type ordinarily included in accountants' "comfort letters" to underwriters other combination agreements with respect to the financial statements Combining Companies and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations closing of the Underwriters to purchase Additional Securities hereunder are subject to delivery to IPO have both taken place concurrently with the Manager on the Option Closing Date closing of such opinions, certificates and documents contemplated by this Agreement. F5 Finishes may waive any condition specified in this Section 5 as such Manager shall reasonably request relating 8.1 by a written waiver delivered to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is Shareholder at any time prior to be offered to Underwritersor at Closing.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters --------------------- hereunder are subject to the following 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, ,
(i) there shall not have occurred any material adverse 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 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, 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.
(cb) The Manager 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 (ba) (i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(dc) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager Representatives shall have received on the Closing Date an opinion of special Jenkens & Xxxxxxxxx, a Professional Corporation, counsel for the Underwriters (the selection of whom shall be approved by the Company), dated the Closing Date, Date addressed to the effect set forth in 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 Representatives and in form and substance satisfactory to Underwriters' counsel, to the Managereffect that:
(i) Each of the Company and its subsidiaries: (A) has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; (B) is duly qualified and in good standing as a foreign corporation in each jurisdiction where the Company 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 a material adverse effect on the Company and its subsidiaries taken as a whole; and (C) has all requisite corporate power and authority to own, 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 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 Company, free and clear of 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 Company is as set forth in the Registration Statement and the Prospectus. All of the outstanding shares of common stock of the Company are duly and validly authorized and issued, are fully paid and nonassessable and were not issued in violation of or subject to any statutory preemptive rights or, to such counsel's knowledge, contractual preemptive rights. The Offered Securities to be delivered on the Closing Date have been duly and 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 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 Company.
(iv) To such counsel's knowledge, there is no legal or governmental suit or proceeding or investigation before any court or before or by any public, regulatory or governmental agency or body pending or threatened against the Company or any of its subsidiaries or their business or properties, which is of a character required to be disclosed in the Registration Statement and the Prospectus that has not been disclosed therein.
(v) The execution, delivery, and shall expressly performance of this Agreement and the consummation of the transactions contemplated 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 Underwriters Company to rely thereon 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 if such opinion were addressed to Underwriters. _______________ (5) References to may be included if required by the NASD or under state securities or Blue Sky laws in connection with the purchase and distribution of the Offered Securities are convertibleby the Underwriters (as to which such counsel need express no opinion) and such as have been made or obtained under the Securities Act.
(fvi) The Manager 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 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 statements therein not misleading or that the Prospectus as of its date (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 statements or certificates shall be 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 they are justified in relying thereon.
(d) The Representatives shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the ManagerRepresentatives, from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Americredit Capital Trust I)
Conditions to Closing. 6.1 Conditions to the Purchaser's Obligation to Purchase. ---------------------------------------------------- The several obligations obligation of the Underwriters Purchaser to purchase the Common Stock hereunder are is subject to the fulfillment by the Company to the Purchaser's satisfaction, on the Closing Date, of each of the following conditions, any of which may be waived in whole or in part by the Purchaser in writing:
(a) No stop order suspending Favorable opinions of Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP, counsel to Company, substantially in the effectiveness of form attached hereto as Exhibit C, shall be --------- delivered to the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the CommissionPurchaser.
(b) Subsequent Resolutions of the board of directors of Company, certified by the Secretary or Assistant Secretary of Company, as of the Closing Date, duly adopted and in full force and effect on such date, authorizing (i) the consummation of each of the transactions contemplated by this Agreement and (ii) specific officers to execute and deliver this Agreement and each other Transaction Document to which it is a party, shall be delivered to the execution and delivery of Purchaser.
(c) Governmental certificates, dated the Underwriting Agreement and most recent practicable date prior to the Closing Date, there shall not have occurred any material adverse changewith telephonic updates where available, or any development involving a prospective material adverse change, showing that Company is organized and in good standing in the conditionState of Delaware, financial or otherwise, or in shall be delivered to the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the ProspectusPurchaser.
(cd) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer A copy of the certificate of incorporation and all amendments thereto of Company, to certified as of a recent date by the effect set forth in clause (b) above and to the effect that the representations and warranties Secretary of State of the State of Delaware, and copies of Company's by-laws, certified by the Secretary or Assistant Secretary of Company contained in this Agreement are as true and correct as of the Closing Date and that Date, shall be delivered to the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedPurchaser.
(de) The Manager Registration Rights Agreement shall have received on be duly executed by the Closing Date opinions of Piper & Marbury, Maryland counsel parties thereto.
(f) The Company shall issue and deliver the Warrant to the Company, Xxxxx X. Xxxxxx, EsqPurchaser., Vice President and General Counsel-- Corporate Affairs for
(g) Certificates of the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Secretary or an Assistant Secretary of Company, dated the Closing Date, as to the effect set forth in Exhibits A, B incumbency and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws signatures of the State officers of California Company executing this Agreement, each other Transaction Document to which it is a party and the federal law any other certificate or other document to be delivered pursuant hereto or thereto, together with evidence of the United States incumbency of Americasuch Secretary or Assistant Secretary, 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 delivered to the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersPurchaser.
(eh) The Manager shall have received on A Certificate of the Closing Date an opinion President, Senior Vice President or CEO 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 (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 stating that all of the United States representations and warranties of America, Company contained herein or in the other Transaction Documents are true and correct on an opinion or opinions and as of local counsel satisfactory to the Manager, so long as each such opinion shall be dated the Closing Date and that no breach of any covenant contained in form and substance satisfactory Article V has occurred or would result from the Closing hereunder shall be delivered to the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters. _______________ (5) References to be included if the Offered Securities are convertiblePurchaser.
(fi) The Manager Company shall have received on the Closing Date make a letterwire transfer of all reasonable fees and expenses of Mastech Corporation's outside counsel, dated the Closing Date, in form and substance satisfactory to the Manager, from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersXxxxxxxx Ingersoll Professional Corporation.
Appears in 1 contract
Conditions to Closing. 6.1 The several obligations obligation of PDL BioPharma, Inc. to purchase the Underwriters hereunder are First Closing Securities at the First Closing is subject to the fulfillment to PDL BioPharma, Inc.’s satisfaction, on or prior to the First Closing Date, of the following conditions, any of which may be waived by PDL BioPharma, Inc.:
(a) No stop order suspending the effectiveness of the Registration Statement is in effect, The representations and no proceedings for such purpose are pending before or threatened warranties made by the CommissionCompany in Section 4 hereof shall be true and correct on the First 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 First Closing Date.
(b) Subsequent With the exception of declarations of effectiveness by the Commission with respect to the execution registration statements contemplated in the Registration Rights Agreement, the Company shall have obtained any and delivery all consents, permits, approvals, registrations and waivers necessary for consummation of the Underwriting Agreement purchase and prior sale of the First Closing Securities and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect.
(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, there 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, or any development involving a prospective material adverse change, change in the condition, financial or otherwise, or in the earnings, Company’s consolidated business or operationsfinancial 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 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 its subsidiariescorrect on the Second Closing Date, taken except to the extent any such representation or warranty expressly speaks as a wholeof an earlier date, from 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 that set forth cover the Second Closing Securities as contemplated in the ProspectusRegistration 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.
(c) The Manager 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 received on filed with Nasdaq an additional Notification Form: Listing of Additional Shares for the Closing Date a certificate, dated the Closing Date and signed by an executive officer listing of the Company, Securities subject to the effect set forth in clause (b) above and Second Closing, a copy of which shall have been provided to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedPurchasers.
(d) The Manager 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 on a certificate signed by the Chief Executive Officer or the Principal Financial Officer, dated as of the Second Closing Date opinions of Piper & MarburyDate, Maryland counsel certifying to the Companyfulfillment of the conditions specified in subsections (a), Xxxxx X. Xxxxxx(b), Esq(c), (d) (h), (j) and (k) of this Section 6.2.
(f) Each Purchaser shall have received a certificate signed by the Secretary, Vice President 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 General Counsel-- Corporate Affairs for 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 Xxxxx Xxxx & XxxxxxxxPopeo, special P.C., counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Second Closing Date, in form and substance satisfactory reasonably acceptable to the ManagerPurchasers 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, from 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 Second Closing.
(j) There shall not have occurred any material adverse change in the Company's independent public accountants, containing statements and information ’s consolidated business or financial condition since the date of the type ordinarily included 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 approval to be obtained.
(l) Stockholder Approval shall have been obtained and deemed effective and evidence of such Stockholder Approval in accountants' "comfort letters" a form reasonably acceptable to underwriters 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”). Such 12-Month Operating Budget shall be prepared by the Company in good faith and include all material expenses reasonably expected to be incurred by the Company through the expiration of the 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:
(a) The representations and warranties made by PDL BioPharma, Inc. in Section 5 hereof shall be true and correct in all material respects on 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 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 Purchaser, any of which may be waived by the Company:
(a) The representations and warranties made by such Purchaser in Section 5 hereof shall be true and correct in all material respects on the Second Closing Date. Such Purchaser shall have performed in all material respects all obligations and covenants herein required to be performed by it on or 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.
(c) 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.
(d) The Company shall have received a Purchase Notice with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Second Closing Securities hereunder are subject to delivery to the Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriterssold in the Second Closing.
(e) Stockholder Approval shall have been obtained and deemed effective.
Appears in 1 contract
Samples: Securities Purchase Agreement (PDL Biopharma, Inc.)
Conditions to Closing. The several 5.1 Conditions to Purchasers' Obligations at the Initial Closing. Each Purchaser's obligations at the Initial Closing, including without limitation its obligation to purchase a Closing Debenture, are conditioned upon the fulfillment (or waiver by such Purchaser) of each of the Underwriters hereunder are subject to following events as of the following conditionsInitial Closing Date:
(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.
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct in all material respects as of such date as if made on such 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 that are required to be complied with or performed by the Company on or before such Closing;
5.1.3 the Initial Closing Date shall occur on a date that is not later than April 16, 2002;
5.1.4 the Company shall have delivered to 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 Closing Date and Initial Closing, it being understood that the Company has complied with all Purchaser may rely on such certificate as though it were a representation and warranty of the agreements and satisfied all of Company made herein;
5.1.5 the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager Company shall have received on the Closing Date opinions delivered to such Purchaser an opinion of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, dated as of such date, in such form and Xxxxx Xxxx & Xxxxxxxx, special counsel covering such matters as shall be acceptable to such Purchaser;
5.1.6 the Company shall have delivered duly executed certificates representing the Debenture being purchased by such Purchaser;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Common Stock shall be listed and actively traded on the NYSE;
5.1.9 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 for ninety (90) days from the Initial Closing Date; and
5.1.10 the Company shall have received the consent of the Senior Agent and the "Required Lenders" (as defined in the Senior Credit Agreement) to the CompanyTransaction Documents and the transactions contemplated thereby, dated such consent to be subject to no conditions other than those which are satisfied prior to the Initial Closing Date, .
5.2 Conditions to Company's Obligations at the effect Initial Closing. The Company's obligations at the Initial Closing are conditioned upon the fulfillment of each of the following events as of the date of such Closing:
5.2.1 the representations and warranties of each Purchaser set forth in Exhibits A, B this Agreement shall be true and C, respectively. In giving correct in all material respects as of such opinion, Xx. Xxxxxx may rely, date as to matters governed by laws other than the laws if made on such date;
5.2.2 each Purchaser shall have complied with or performed all of the State of California agreements, obligations and conditions set forth in this Agreement that are required to be complied with or performed by each Purchaser on or before such Closing;
5.2.3 each Purchaser shall have executed and delivered the federal law of Registration Rights Agreement; and
5.2.4 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager Company shall have received on the Closing Date an opinion consent of special counsel for the Underwriters Senior Agent and the "Required Lenders" (as defined in the selection of whom shall be approved by the Company), dated the Closing Date, Senior Credit Agreement) to the effect set forth in paragraphs (ii), (iii) Transaction Documents 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 included if the Offered Securities are convertibletransactions contemplated thereby.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Investor's Obligations at the Closing. The several Investor's obligations to effect the Closing, including without limitation its obligation to purchase the Note and the Warrant at the Closing, are conditioned upon the fulfillment (or waiver by the Investor in its sole and absolute discretion) of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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 and the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.shall use commercially reasonably efforts to cause each of such conditions to be satisfied:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement or the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by the Company on or before such date;
5.1.3 the Closing Date shall occur not later than March 31, 2005;
5.1.4 the Company shall have delivered to 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 have been fulfilled (or waived in writing by the Investor) as of the Closing Date. The officer signing and delivering , it being understood that the Investor may rely on such certificate may rely upon as though it were a representation and warranty of the best of his knowledge as to proceedings threatened.Company made herein;
(d) The Manager 5.1.5 the Company shall have received on delivered to the Closing Date opinions Investor a certificate, signed by the Secretary or an Assistant Secretary of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxattaching (i) the Certificate of Incorporation and By-Laws of the Company, Esq.and (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, Vice President and General Counsel-- Corporate Affairs 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 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 the Investor an opinion of counsel for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance reasonably satisfactory to the ManagerInvestor;
5.1.7 the Company shall have delivered to the Investor the Note and the Warrant, both duly executed by the Company;
5.1.8 the Company shall have executed and delivered to the Investor the Security Agreement and the Registration Rights Agreement and the Guarantor shall have executed and delivered to the Investor the Subsidiary Guaranty and the Security Agreement;
5.1.9 the Company shall have obtained the written agreement of each Key Person to refrain, while such person is associated or affiliated with the Company or any of its Subsidiaries, 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 Investor without restriction under Rule 144;
5.1.10 there shall have occurred no material adverse change in the Company's independent public accountantsconsolidated business or financial condition since December 31, containing statements 2004 (except as described on Schedule 3.8.1);
5.1.11 the Common Stock shall be quoted on the Nasdaq OTC Bulletin Board or the Nasdaq SmallCap Market;
5.1.12 the Company shall have authorized and information reserved for issuance not less than one hundred and twenty five percent (125%) of the type ordinarily included number of Warrant Shares issuable upon exercise of the Warrant, without regard to any limitation on such exercise that may otherwise exist; and
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 accountants' "comfort letters" effect that restrains or prohibits the consummation of the transactions contemplated hereby or by the other Transaction Documents.
5.2 Conditions to underwriters with respect Company's Obligations at the Closing. The Company's obligations to effect the Closing 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:
5.2.1 the representations and warranties of the 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 financial statements extent that any such representation or warranty relates to a particular date, in which case such representation or warranty shall be true and certain financial information contained correct in all material respects as of that particular date);
5.2.2 the Investor shall have complied with or incorporated by reference into the Prospectus. [The several obligations performed all of the Underwriters agreements, obligations and conditions set forth in this Agreement and in the other Transaction Documents that are required to purchase Additional Securities hereunder are subject be complied with or performed by the Investor on or before the Closing 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 or by the other Transaction Documents;
5.2.4 the Investor shall have executed each Transaction Document to delivery which it is a party and shall have delivered the same to the Manager on Company; and
5.2.5 the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager Investor shall reasonably request relating have tendered to the issuance of Company the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersPurchase Price for the Note and Warrant.
Appears in 1 contract
Samples: Securities Purchase Agreement (Tag Entertainment Corp)
Conditions to Closing. The several 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 Debentures 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 conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct in all 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 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 April 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 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 Common Stock shall be quoted and actively 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 or otherwise) since the date of the Company's most recent 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 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 Debentures or exercise the Warrants as of such date);
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 Company has complied with consummation of the transactions contemplated hereby, by the other Transaction Documents or by the Debentures;
5.1.12 the aggregate Purchase Price to be paid by the Investors for all of the agreements Debentures and satisfied 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 closing:
5.2.1 the representations and warranties of each Investor shall be true and correct in all respects as of such date as if made on its part 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 or satisfied by such Investor on or before the Closing Date. The officer signing and delivering such certificate may rely upon 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 best consummation of his knowledge as to proceedings threatened.the transactions contemplated hereby, by the other Transaction Documents or by the Debentures; and
(d) The Manager 5.2.4 the Company shall have received on obtained the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, EsqSenior Lender Consent., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Securities Purchase Agreement (Omni Energy Services Corp)
Conditions to Closing. The several obligations of 8.1 F5 Finishes Closing Conditions F5 Finishes’ obligation to close the Underwriters hereunder are Transaction is subject to the satisfaction of each of the following conditionsconditions (the “F5 Finishes Closing Conditions”) at or prior to Closing:
(a) No stop order suspending the effectiveness of the Registration Statement is Shareholder’s representations and warranties in effectArticle 4, and no proceedings for such purpose are pending before as qualified or threatened limited 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, exceptions in the conditionSchedules to Article 4, financial or otherwise, or in the earnings, business or operations, of the Company are true and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(c) The Manager shall have received correct on the Closing Date a certificate, dated the as if made at and as of 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 other than representations and warranties that address matters as of the Company contained in this Agreement are a certain date, which were true and correct as of the Closing Date that date);
(b) Shareholder has executed and that the Company has complied with delivered all of the agreements 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 satisfied in all material respects all of the obligations other obligations, agreements and conditions under this Agreement that he is required to perform, comply with or satisfy at or prior to Closing;
(c) each Notice or filing listed on its part to be performed Schedule 4.5 has been duly given or satisfied made, and each Consent or Permit listed on or before the Closing Date. The officer signing Schedule 4.5 has been obtained and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.is in full force;
(d) The Manager shall F5 Finishes and Shareholder have received agreed on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California Financial Statements 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.Interim Financial Statements;
(e) The Manager shall have received on the Closing Date an opinion of special counsel Company’s adjusted earnings before interest, taxes, depreciation and amortization for the Underwriters (the selection of whom shall be approved by the Company)12-month period ended December 31, dated the Closing Date, to the effect set forth in 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 included if the Offered Securities are convertible.2018 was $757,975;
(f) The Manager consistent with Section 8.1(e), above, after Xxxxxx, LLP completes its audit of the Company, F5 Finishes is satisfied with the Company’s Financial Statements;
(g) no material adverse change in the Company’s assets, financial condition, operations, operating results or prospects has occurred since the date of this Agreement;
(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 received on the cash as of 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 an amount not less than $100,000; and
(m) closing of the type ordinarily included in accountants' "comfort letters" to underwriters other combination agreements with respect to the financial statements Combining Companies and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations closing of the Underwriters to purchase Additional Securities hereunder are subject to delivery to IPO have both taken place concurrently with the Manager on the Option Closing Date closing of such opinions, certificates and documents contemplated by this Agreement. F5 Finishes may waive any condition specified in this Section 5 as such Manager shall reasonably request relating 8.1 by a written waiver delivered to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is Shareholder at any time prior to be offered to Underwritersor at Closing.
Appears in 1 contract
Conditions to Closing. The several obligations Closing on the Loan is conditioned upon the satisfaction of each of the Underwriters hereunder are subject to the following conditionsfollowing:
(a) No stop order suspending the effectiveness of the Registration Statement is in effect, all Financing Documents and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Subsequent other instruments applicable to the execution Loan are in form and delivery of the Underwriting Agreement and prior content satisfactory to the Closing Date, there shall not Bank and 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 been duly executed and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 delivered in form and substance satisfactory to the Manager, Bank and shall expressly permit have not been modified, amended or rescinded, shall be in full force and effect on and as of the Underwriters Closing Date and executed original or certified copies of each thereof shall have been delivered to rely thereon the Bank;
(b) the Bank has received a certified copy of the Authorizing Ordinance of the Enterprise, which shall be in form and content satisfactory to the 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 if 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;
(c) the Enterprise has provided a certificate certifying that on the Closing Date each representation and warranty on the 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 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 such opinion were addressed to Underwriters.other matters as the Bank might reasonably request;
(d) the Enterprise has provided a certificate certifying that the only Senior Debt outstanding as of the Closing Date is the 2018A Bonds and the 2018B Bonds and that no Parity Debt is outstanding as of the Closing Date;
(e) The Manager the Bank shall have 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, Xxxxxx Snow LLP to the effect set forth in paragraphs (ii), (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs that (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 obligation of the United States Enterprise to pay the principal of America, and interest on an opinion or opinions the Loan constitutes a valid and binding special obligation of local counsel satisfactory the Enterprise payable solely from the Net Pledged Revenues with a lien on the Net Pledged Revenues which is subordinate to the Manager, so long as each such opinion shall be dated lien thereon of the Closing Date and in form and substance satisfactory to the ManagerSenior Debt, and shall expressly permit (ii) this Agreement and the Underwriters to rely thereon Note are valid and binding obligations of the Enterprise, enforceable against the Enterprise in accordance with their respective terms, except as if such opinion were addressed to Underwriters. _______________ (5) References to enforceability may be included if the Offered Securities are convertible.limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors’ rights generally, and by equitable principles, whether considered at law or in equity;
(f) The Manager all proceedings taken in connection with the transactions contemplated by 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 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 Enterprise to the Bank is accurate in all respects;
(k) the Bank shall have received on such other certificates, approvals, filings, opinions and documents as shall be reasonably requested by the Closing Date a letter, dated Bank;
(l) all other legal matters pertaining to the Closing Date, in form execution and substance delivery of this Agreement and the other Financing Documents shall be reasonably satisfactory to the Manager, from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersBank.
Appears in 1 contract
Samples: Loan Agreement
Conditions to Closing. The several obligations obligation of the Underwriters hereunder are Investor to purchase the Securities at the applicable Closing is subject to the satisfaction of each of the following conditions, at or before each applicable Closing Date (except to the extent that the condition is expressly limited under the applicable subparagraph of this Section 7(a) to a particular Closing or a particular Closing Date), it being agreed and understood by the Company and the Investor that each of these conditions is material, is beyond the Investor’s reasonable control, is for the Investor’s sole benefit and shall only be deemed to have been waived by the Investor if Investor, acting in its sole discretion, provides the Company with prior written notice of the waiver thereof:
(ai) No stop order suspending Solely with respect to the effectiveness Initial Closing, the Company shall have executed each of the Registration Statement Transaction Documents to which it is in effecta party and delivered the same to the Investor, except that the Second Closing Warrant shall be executed and no proceedings for such purpose are pending before or threatened delivered by the CommissionCompany at the Second Closing and, if applicable, the Final Closing Warrant shall be executed and delivered by the Company at the Final Closing.
(bii) Subsequent to The Investor shall have received the execution and delivery opinion of Xxxx Xxxxxx Xxxxxxxx, the Company’s Washington counsel, dated as of the Underwriting Agreement and prior to the applicable Closing Date, there in the form previously provided to the Company.
(iii) Solely with respect to the Initial Closing and simultaneously therewith, the Company shall not have occurred any material adverse change, or any development involving delivered to the Investor a prospective material adverse changecopy of the Irrevocable Transfer Agent Instructions, in the conditionform acceptable to the Investor, financial 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 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 otherwisecomparable office) of such jurisdiction of formation as of a date within ten (10) days of the applicable Closing Date, or 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 earningsform reasonably acceptable to the Investor, business or operations, executed by the Secretary of the Company and its subsidiariesdated as of the applicable Closing Date, taken as to (i) the resolutions consistent with Section 3(c) as adopted by the Company’s Board of Directors in a wholeform reasonably acceptable to the Investor, from that set forth in (ii) the Prospectus.
Articles of Incorporation of the Company and (ciii) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer 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 effect set forth in clause (b) above and to the effect Investor, certifying that the representations and warranties of the Company contained shall be true and correct in this Agreement are 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 that the Company has complied with all of the agreements warranties automatically and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received without any further action on the Closing Date opinions part of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxxthe Company shall have performed, special counsel 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, dated as of the applicable Closing Date, to by the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may relySEC or the Trading Markets from trading on the Trading Markets nor shall suspension by the SEC or the Trading Markets have been threatened, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the applicable Closing Date, in form and substance satisfactory to writing by the Manager, from SEC or the Company's independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters Trading Markets (other than with respect to the financial statements 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 certain financial information contained approvals and shall have made all required filings, in or incorporated by reference into each case, if any, necessary for the Prospectus. [The several obligations sale of the Underwriters 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 purchase Additional Securities hereunder are subject 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 delivery rely on this condition.
(xiii) All shares of Common Stock, if any, required to be issued on or prior to the Manager on the Option 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 opinionsClosing in connection herewith, certificates and documents contemplated by this Section 5 as 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 Manager shall reasonably request 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 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 Additional Securities.](6applicable Closing.
(xviii) _______________ (6) Include if The Company is not, and will not be as a green shoe is 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 offered listed under Item 601 of Regulation S-K under the 1934 Act, on any of Company’s reports filed or required to Underwritersbe 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 funds 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. The several 5.1 Conditions to Purchaser's Obligations at Closing. Each Purchaser's obligations at the Closing, including without limitation its obligation to purchase the Preferred Shares and Warrant being purchased by such Purchaser, are conditioned upon the satisfaction by the Company (or waiver by such Purchaser) of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct in all material respects as of such date as if made on such 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 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, 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 1, 2000;
5.1.4 the Company shall have delivered to such Purchaser a certificate, signed by 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 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 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 Shares and Warrant being purchased by such Purchaser;
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 SmallCap Market and no suspension of trading in the Common Stock on such market shall have occurred and be continuing as of the Closing Date Date;
5.1.9 the Company shall have authorized and reserved for issuance the number of shares of Common Stock 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 Company has complied with aggregate amount tendered by all of the agreements 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 satisfied the Initial Purchaser named therein shall have been declared effective by the Commission and no stop order relating to such registration statement shall have been issued; and
5.1.12 since the date of this Agreement, there shall not have occurred, in the reasonable judgment of such Purchaser, a material adverse change in the business, operations, financial condition, properties, prospects or results of operation of the Company.
5.2 Conditions to Company's Obligations at the Closing. The Company's obligations at the Closing are conditioned upon the satisfaction (or waiver by the Company) of each of the following events as of the Closing Date:
5.2.1 the representations and warranties of each Purchaser shall be true and correct in all material respects as of such date as if made on such date; and
5.2.2 each Purchaser shall have complied with or performed in all material respects all of the agreements, obligations on its part and conditions set forth in this Agreement that are required to be complied with or performed or satisfied by such Purchaser on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedClosing.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Securities Purchase Agreement (Webb Interactive Services Inc)
Conditions to Closing. The several obligations of Your obligation to purchase and pay for the Underwriters hereunder are Series [ ] Notes to be sold to you at the Closing is subject to the fulfillment to your satisfaction, prior to or at the Closing, of the following conditions:
(a) No stop order suspending the effectiveness The Company shall have executed and delivered a counterpart of the Registration Statement is in effect, and no proceedings for this Supplement signed on behalf of such purpose are pending before or threatened by the Commissionparty.
(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 All conditions precedent set forth in Section 4 of the ProspectusNote Agreement 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 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 deemed to be reference to the “issue and sale of the Series [ ] Notes;” and all references to any “Schedule” in such Sections of the Note Agreement shall be deemed a reference to the corresponding Schedule attached to this Supplement).
(c) The Manager Company shall have received on delivered to you a Secretary’s Certificate certifying as to the Closing Date a certificateresolutions attached thereto and other proceedings relating to the authorization, dated the Closing Date execution and signed by an executive officer delivery of the Company, to the effect set forth in clause (b) above Series [ ] Notes and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedSupplement.
(d) The Manager Company shall have received on execute and deliver to each Additional Purchaser an Officer’s Certificate dated the Closing Date opinions date of Piper & Marburyissue of the Series [ ] Notes, Maryland counsel certifying that the conditions specified in Sections 4.3 and 4.15 of the Note Agreement has been fulfilled.
(e) A duly authorized Senior Financial Officer of each of the Company 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 Company, Xxxxx X. Xxxxxx, Esq., Vice President Note Agreement and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 & Marburywith appropriate attachments, in each case so long as such opinion 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.
(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 dated changed to reference the Closing Date “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 received opinions in form and substance satisfactory to you, dated the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on date of the Closing Date an opinion of special from , counsel for the Underwriters (the selection of whom shall be approved by the Company), dated the Closing Date, covering such matters incident to the effect set forth in 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 transactions contemplated hereby as you or your counsel may rely, as reasonably request (and Company hereby instructs its counsel 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 deliver 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 included if the Offered Securities are convertibleyou).
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several obligations obligation of the Underwriters each Purchaser to purchase Notes hereunder are shall be subject to the receipt by each Purchaser of each Financing Document to be entered into on the Closing Date and to the satisfaction of the following conditionsconditions precedent, each in form and substance reasonably satisfactory to each Purchaser:
(a) No stop order suspending receipt by the effectiveness Purchasers of executed copies of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.Financing Documents;
(b) Subsequent 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 execution Issuer;
(d) receipt of payment of all fees, expenses and delivery other amounts due and payable on the Closing Date under each Financing Document; provided that, in accordance with the provisions of the Underwriting 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;
(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 contained in the Financing Documents are true and correct in all material respects (without duplication of any materiality qualifier) as of the Closing Date, both before and after giving effect to the transactions contemplated by the Financing Documents;
(f) receipt of, not later than five (5) days prior to the Closing Date, there shall not have occurred any material adverse changeall 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, or any development involving a prospective material adverse changeincluding without limitation, 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.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the CompanyPatriot Act, to the effect set forth in clause (b) above and extent such information has been requested prior to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to and in each case, the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws results of the State of California applicable Patriot Act 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the type ordinarily included in accountants' "comfort letters" to underwriters OFAC searches with respect to the financial statements Issuer and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery its Subsidiaries shall be satisfactory to the Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.Purchasers;
Appears in 1 contract
Samples: Amendment to Atw Notes and Warrants (Faraday Future Intelligent Electric Inc.)
Conditions to Closing. 5.1. Conditions to Investor’s Obligations at the Closing. The several Investor’s obligations to effect the Closing, including, without limitation, its obligation to purchase Shares and Warrant at the Closing, are conditioned upon the fulfillment (or waiver by the Investor in its sole and absolute discretion) of each of the Underwriters hereunder are subject following events as of the Closing Date, and the Company shall use its commercially reasonable efforts to the following conditionscause each of such conditions to be satisfied:
(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.
(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 contained set forth in this Agreement are and in the other Transaction Documents shall be true and correct as of such date as if made on such date (except to the Closing Date extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct as of that particular date);
(b) the Company has shall have complied with or performed all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing Closing;
(c) the Company shall have delivered to the Investor a certificate, signed by the Chief Executive Officer and delivering Chief Financial Officer of the Company, certifying that the conditions specified in Sections 5.1(a), (b), (h), (i), (k) and (l) have been fulfilled as of the Closing, it being understood that the Investor may rely on such certificate may rely upon as though it were a representation and warranty of the best of his knowledge as to proceedings threatened.Company made herein;
(d) The Manager the Company shall have received on delivered to the Closing Date opinions Investor duly executed certificates representing the Shares and the Warrant being purchased by the Investor;
(e) the Company shall have executed and delivered to the Investor the Registration Rights Agreement;
(f) 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;
(g) the Company shall have delivered to the Investor a certificate, signed by the Secretary or an Assistant Secretary of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President attaching (i) the charter and General Counsel-- Corporate Affairs for bylaws of the Company, and Xxxxx Xxxx & Xxxxxxxx(ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, special counsel 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 Investor may rely on such certificate as a representation and warranty of the Company made herein;
(h) the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of the Warrant to the Company, dated be issued at the Closing Date(such number to be determined without regard to any restriction on such exercise);
(i) there shall be no injunction, to restraining order or decree of any nature of any court or Governmental Authority of competent jurisdiction that is in effect that restrains or prohibits the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws consummation of the State of California transactions contemplated hereby and by 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 Transaction Documents;
(j) the Closing Date and in form and substance satisfactory to the Managershall occur on a date that is not later than July 3, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.2009;
(ek) The Manager there shall have received 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; and
(l) the Common Stock shall be listed 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 (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 included if the Offered Securities are convertibleNasdaq Global Market.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are to pay the Excess Proceeds Amount for the New Shares on the Closing Date shall be subject to the following conditionsconditions that prior to 9:00 a.m. CEST on the Closing Date:
(a) No stop order suspending the effectiveness of the Registration Statement is in effect10.4.1 Linklaters LLP, and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Subsequent as counsel to the execution and delivery of Underwriters, shall have received the Underwriting Agreement and following documents no later than 4:00 p.m. CEST the day prior to the Closing Date and shall hold in escrow such documents upon receipt, and such documents shall have been released from escrow prior to 8:00 a.m. CEST on the Closing Date:
(i) a certificate signed by Xxxxx Xxxxx, 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, Chief Executive Officer of the Company and its subsidiariesXx. Xxxxx Xxxxxxxx, taken as a whole, from that set forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer Chief Financial Officer of the Company, dated the date of the Closing Date, as to (a) the effect set forth in clause (b) above and to the effect that accuracy of the representations and warranties of the Company contained in this Agreement are true and correct all respects as of the Closing Date date of such certificate and that (b) the performance by the Company has complied with of all of the agreements and satisfied all of the its obligations on its part to be performed hereunder at or satisfied on or before the Closing Date. The officer signing and delivering prior to such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Companydate, and Xxxxx Xxxx & Xxxxxxxx(c) the absence of any Material Adverse Effect, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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, Joint Bookrunners and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.attached in Exhibit 4 Part A hereto;
(eii) The Manager shall have received on the Closing Date an a German law legal opinion of special Xxxxxxx Xxxxxxxxx, general 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 (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 date 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the ManagerJoint Bookrunners and as attached in Exhibit 4 Part B hereto;
(iii) a German law legal opinion and a German law bring-down disclosure letter relating to the German Prospectus (as then supplemented), each dated the date of the Closing Date, of Freshfields Bruckhaus Xxxxxxxx LLP, counsel to the Company, in form and substance satisfactory to the Joint Bookrunners and as attached in Exhibit 4 Part C and D hereto;
(iv) US legal opinions from Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxx LLP and Freshfields Bruckhaus Xxxxxxxx LLP, each dated the date of the Closing Date, in form and substance satisfactory to the Joint Bookrunners and as attached in Exhibit 4 Part E and F hereto;
(v) a German law legal opinion and a German law bring-down disclosure letter relating to the German Prospectus (as then supplemented), each dated the date of the Closing Date, of Linklaters LLP, counsel to the Underwriters, in form and substance satisfactory to the Joint Bookrunners and as attached in Exhibit 4 Part G and H hereto;
(vi) a US legal opinion, dated the date of the Closing Date, of Linklaters LLP, counsel to the Underwriters, in form and substance satisfactory to the Joint Bookrunners and as attached in Exhibit 4 Part I hereto;
(vii) a bring-down comfort letter in compliance with IDW standard PS 910 relating to the German Offering and a bring-down comfort letter in compliance with AICPA standard SAS 72 relating to the US Offering and the Private Equity Offering, respectively, each dated the date of the Closing Date, from KPMG, auditor of the Company's independent public accountants, containing statements in form and information substance satisfactory to the Joint Bookrunners and as attached in Exhibit 4 Part J and K hereto.
10.4.2 The Capital Increase has been duly registered with the Commercial Register, the New Shares have been validly issued and the Company has furnished the Underwriters with the documents pursuant to Sub-section 1.1 above.
10.4.3 The Company shall have delivered to the Underwriters (i) in accordance with Sub-section 1.1.2 above, duly executed Global Share Certificate(s) evidencing the New Shares, and (ii) evidence to the satisfaction of the type ordinarily included Joint Bookrunners of the valid execution of the Capital Increase represented by the New Shares and of the registration of the execution of the Capital Increase in accountants' "comfort letters" the Commercial Register in accordance with Section 1 above.
10.4.4 The New Shares shall have been duly admitted to underwriters trading on the Regulated Market (regulierter Markt) as well as to the sub-sector of the Regulated Market with further post-admission disclosure obligations (Prime Standard) on the Frankfurt Stock Exchange and the New Shares shall have been introduced to trading on the Frankfurt Stock Exchange.
10.4.5 The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act and no proceedings for that purpose shall have been instituted or be pending or threatened by the Commission, any request on the part of the Commission for additional information shall have been complied with to the satisfaction of counsel to the Underwriters and the Commission and the Company shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form.
10.4.6 If the Registration Statement and/or the offering of the Securities has been filed with FINRA for review, FINRA shall not have raised any objection with respect to the financial statements fairness and certain financial information reasonableness of the underwriting terms and arrangements.
10.4.7 It has not come to the notice of the Joint Bookrunners that any statement contained in any Relevant Document (or incorporated by reference into any amendment or supplement thereto) is or has become untrue, inaccurate or misleading in any respect, or any matter has arisen, which would, if such document had been issued at that time, constitute an omission from such Relevant Document (or any amendment or supplement to any of them), and which the Prospectus. [The several obligations Joint Bookrunners consider in their sole judgement (acting in good faith and after consultation with the Company to the extent reasonably practical)) to be (individually or in the aggregate) (i) material in the context of the Underwriters to purchase Additional Securities hereunder are subject to delivery to Company, the Manager on Group, the Option Closing Date Rights Offering, the underwriting of such opinionsthe New Shares, certificates and documents listing, post admission dealings or any of the transactions contemplated by this Section 5 Agreement; or (ii) such as such Manager shall reasonably request relating to make it impracticable, inappropriate or inadvisable to proceed with the Rights Offering, the underwriting of the New Shares or the Offering.
10.4.8 All representations and warranties made by the Company in this Agreement are true and correct in all respects and not misleading in any respect and as of the date of this Agreement and at all times before the Closing Date, as if they had been repeated by reference to the issuance facts and circumstances then existing.
10.4.9 The Investment Agreement has been entered into between the Company and the Private Equity Investor; and has not been amended, rescinded or terminated by any other means, however, the Joint Bookrunners agree they may waive this provision if they determine, in their sole discretion (acting in good faith), that any amendment, termination or change in circumstance related to the Investment Agreement will not be so material to the Rights Offering or the underwriting to make it impractical, inappropriate or inadvisable to proceed with the Offering of the Additional Securities.](6) _______________ (6) Include if a green shoe is delivery of the New Shares.
10.4.10 The Company has complied with all of its obligations and undertakings under this Agreement and under the terms or conditions of the Rights Offering which fall to be offered performed or satisfied prior to Underwriterslisting of the New Shares on the Frankfurt Stock Exchange.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are Closing is subject to the satisfaction or waiver by the party to be benefited thereby of the following conditions:
(a) No stop order suspending The Company shall have delivered or caused to be delivered to each Purchaser the effectiveness 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 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 Registration Statement is in effectCompany, attaching (i) the charter and By-Laws of the Company, and no proceedings for such purpose are pending before or threatened (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the Commissionother 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 of the Company, certifying that the conditions specified in this Section have been fulfilled as of the Closing, it being understood that the Purchaser may rely on such certificate as though it were a representation and warranty of the Company made herein; and
(x) a copy of Press Release or Current Report on Form 8-K describing the Transaction Documents.
(b) Subsequent At the Closing, the Purchaser shall have delivered or caused to be delivered to the execution Company the following:
(i) this Agreement duly executed by the Purchaser;
(ii) the Subscription Amount, which is payable in full by delivering the New Note, the Extended Note and delivery of the Underwriting Agreement and prior Purchaser’s Common Stock to the Closing DateCompany; and
(iii) the Registration Rights Agreement duly executed by the Purchaser, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in including questionnaire.
(iv) the condition, financial or otherwise, or in Extended Note;
(v) the earnings, business or operations, of New Note; and
(vi) the Company and its subsidiaries, taken as a whole, from that set forth in the ProspectusPurchaser’s Common Stock.
(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 All representations and warranties of the Company other party contained in this Agreement are herein shall remain true and correct as of the Closing Date and that the Company has complied with all covenants of the agreements and satisfied all of the obligations on its part other party shall have been performed if due prior to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threateneddate.
(d) The Manager shall have received on From the Closing Date opinions of Piper & Marbury, Maryland counsel date hereof to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company, which suspension shall be terminated prior to the Closing), dated and, at any time prior to the Closing Date, to the effect set forth trading in paragraphs (ii)securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in Exhibit C. In giving or minimum prices shall not have been established on securities whose trades are reported by such opinionservice, such counsel may relyor on any Trading Market, as to matters governed nor shall a banking moratorium have been declared either by laws other than the federal law of the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of Americahostilities or other national or international calamity of such magnitude in its effect on, on an opinion or opinions of local counsel satisfactory to the Managerany material adverse change in, 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Dateany financial market which, in form and substance satisfactory to each case, in the Managerreasonable judgment of each Purchaser, from 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 makes it impracticable or incorporated by reference into the Prospectus. [The several obligations of the Underwriters inadvisable to purchase Additional Securities hereunder are subject to delivery to the Manager on shares of Preferred Stock at the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersClosing.
Appears in 1 contract
Conditions to Closing. 2.1 The several Company’s obligations of to sell the Underwriters hereunder are Securities 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, 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 Securities at each Closing is subject to the fulfillment to its satisfaction on or prior to such Closing Date of each of the following conditions, each of which may be waived by the Purchaser:
(a) No stop order suspending the effectiveness Each condition set forth in Article IV of the Registration Statement is Securities Purchase Agreement (provided, however, the Purchaser hereby waives the conditions set forth in effectSection 4.4, Section 4.5 and no proceedings for Section 4.7, or acknowledges that such purpose are pending before or threatened by the Commission.conditions have been previously satisfied);
(b) Subsequent to The Company shall have executed and delivered the execution following agreements and delivery documents as of the Underwriting date hereof:
(i) the Second Amendment to Escrow 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 form of Exhibit A attached hereto;
(ii) the Second Amendment to Stock Pledge and Escrow Agreement in the earnings, business or operations, form of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.Exhibit B attached hereto;
(ciii) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by certificate of 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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering dated such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to certifying (i) the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws fulfillment of the State conditions specified in Section 2.2(b)(i) of California this Amendment, (ii) the Board resolutions approving this Agreement 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (ii)transactions contemplated hereby, (iii) the articles of incorporation and bylaws of the Company; (iv) [the names of each officer and director of the Company as of such Closing Date; and (viiv) and (viii)](5) in Exhibit A and paragraphs (i) through such other matters as the Purchaser shall reasonably request; and
(iv) an Additional Acquired Note in Exhibit C. In giving such opinion, such counsel may rely, as to matters governed by laws other than the federal law principal amount 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 included if the Offered Securities are convertible$500,000.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Securities Purchase Agreement (Amacore Group, Inc.)
Conditions to Closing. The several obligations of 8.1 F5 Finishes Closing Conditions F5 Finishes’ obligation to close the Underwriters hereunder are Transaction is subject to the satisfaction of each of the following conditionsconditions (the “F5 Finishes Closing Conditions”) at or prior to Closing:
(a) No stop order suspending the effectiveness of the Registration Statement is Shareholder’s representations and warranties in effectArticle 4, and no proceedings for such purpose are pending before as qualified or threatened limited 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, exceptions in the conditionSchedules to Article 4, financial or otherwise, or in the earnings, business or operations, of the Company are true and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(c) The Manager shall have received correct on the Closing Date a certificate, dated the as if made at and as of 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 other than representations and warranties that address matters as of the Company contained in this Agreement are a certain date, which were true and correct as of the Closing Date that date);
(b) Shareholder has executed and that the Company has complied with delivered all of the agreements 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 satisfied in all material respects all of the obligations other obligations, agreements and conditions under this Agreement that he is required to perform, comply with or satisfy at or prior to Closing;
(c) each Notice or filing listed on its part to be performed Schedule 4.5 has been duly given or satisfied made, and each Consent or Permit listed on or before the Closing Date. The officer signing Schedule 4.5 has been obtained and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.is in full force;
(d) The Manager shall F5 Finishes and Shareholder have received agreed on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California Financial Statements 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.Interim Financial Statements;
(e) The Manager shall have received on the Closing Date an opinion of special counsel Company’s adjusted earnings before interest, taxes, depreciation and amortization for the Underwriters (the selection of whom shall be approved by the Company)12-month period ended December 31, dated the Closing Date, to the effect set forth in 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 included if the Offered Securities are convertible.2018 was $2,226,671;
(f) The Manager consistent with Section 8.1(e), above, after Xxxxxx, LLP completes its audit of the Company, F5 Finishes is satisfied with the Company’s Financial Statements;
(g) no material adverse change in the Company’s assets, financial condition, operations, operating results or prospects has occurred since the date of this Agreement;
(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 received on the cash as of 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 an amount not less than $200,000; and
(m) closing of the type ordinarily included in accountants' "comfort letters" to underwriters other combination agreements with respect to the financial statements Combining Companies and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations closing of the Underwriters to purchase Additional Securities hereunder are subject to delivery to IPO have both taken place concurrently with the Manager on the Option Closing Date closing of such opinions, certificates and documents contemplated by this Agreement. F5 Finishes may waive any condition specified in this Section 5 as such Manager shall reasonably request relating 8.1 by a written waiver delivered to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is Shareholder at any time prior to be offered to Underwritersor at Closing.
Appears in 1 contract
Conditions to Closing. The several obligations effectiveness of the Underwriters hereunder are this Agreement is subject to the satisfaction of the following 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) No stop order suspending the effectiveness receipt of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.an executed counterpart of this Agreement;
(b) Subsequent 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 execution Borrower, substantially in the forms of Exhibit B-1 and delivery 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 Underwriting Agreement Borrower, to the effect that (i) no Default or Event of Default has occurred and prior to is continuing as of the Closing Date, (ii) since December 31, 2004, there shall not have occurred any material adverse change, has been no change or any development involving a prospective material adverse change, changes in the conditionbusiness, assets, liabilities, operations, condition (financial or otherwise, ) or in the earnings, business or operations, prospects of the Company Borrower and its subsidiaries, taken as a whole, from that set forth or in the Prospectus.
facts and information regarding such entities which alone, or in the aggregate, could reasonably be expected to have a Material Adverse Effect and (ciii) 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 Borrower contained in this Agreement Article IV hereof are true and correct in all material respects as of the Closing Date date hereof;
(e) receipt of all documents which the Agent and that the Company has complied with all Lenders may reasonably request relating to the existence of the agreements and satisfied all of Borrower, the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs corporate authority for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California and the federal law validity 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 this Agreement and the federal law of the United States of Americaother Loan Documents and any other matters relevant hereto, on an opinion of Piper & Marbury, in each case so long as such opinion shall be dated the Closing Date and all in form and substance satisfactory to the ManagerAgent and the Lenders, and shall expressly permit including without limitation a certificate of incumbency of the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an opinion of special counsel for the Underwriters (the selection of whom shall be approved Borrower, signed by the Company)Secretary or an Assistant Secretary of the Borrower, dated the Closing Date, certifying as to the effect set forth in paragraphs names, true signatures and incumbency of the officer or officers of the Borrower authorized to execute and deliver the Loan Documents to which the Borrower is a party and certified copies of the following items: (i) the Borrower’s Articles of Incorporation, (ii)) the Borrower’s By-laws, (iii) and a certificate of the Secretary of State of the State of South 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 (viiv) 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 the action taken by laws other than the federal law Board of Directors of the United States Borrower authorizing the Borrower’s execution, delivery and performance of Americathis Agreement, on an opinion or opinions of local counsel satisfactory the Notes and the other Loan Documents to which 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 included if the Offered Securities are convertible.Borrower is a party;
(f) The Manager receipt by the Agent of evidence that the Borrower shall have irrevocably terminated all commitments and indefeasibly paid in full all amounts due under the Existing Credit Agreement;
(g) receipt by the Agent (for its own account and the account of the Lenders, as applicable) of all fees required to be received in connection with this Agreement on the Closing Date a letter, dated the or before such Closing Date, in form and substance satisfactory to the Manager, from 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 or incorporated by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date ; and
(h) receipt of such opinions, certificates other documents as the Agent and documents contemplated by this Section 5 as such Manager shall the Lenders may reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersrequest.
Appears in 1 contract
Samples: Five Year Credit Agreement (South Carolina Electric & Gas Co)
Conditions to Closing. The several 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 Purchased Securities at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 April 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 Shares, Series A Warrant and 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 to such Investor a copy of the Insurance Binder, and such Investor shall be reasonably satisfied that the Insurance Policies shall be in effect 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 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; and
5.1.11 the aggregate Purchase Price to be paid at the Closing by the Investors 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 Closing Date 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 Company has 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 agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by such Investor on or before the Closing Date. The officer signing and delivering such certificate may rely upon 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 best consummation of his knowledge as to proceedings threatened.the transactions contemplated hereby or by the other Transaction Documents;
(d) The Manager 5.2.4 each Investor shall have received on executed each Transaction Document to which it is a party and delivered the Closing Date opinions of Piper & Marbury, Maryland counsel same to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs ; and
5.2.5 each Investor shall have delivered to the Company the Purchase Price for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated Purchased Securities being purchased by it at the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws wire transfer of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwritersimmediately available funds.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Securities Purchase Agreement (Raptor Networks Technology Inc)
Conditions to Closing. The several 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 Purchased Securities at the Closing, are conditioned upon the fulfillment or waiver by such Investor of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 Closing Date 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 has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement and in the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.Closing;
(d) The Manager shall have received on 5.1.3 the Closing Date opinions shall occur on a date that is not later than June 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 Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxcertifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, Esq., Vice President it being understood that such Investor may rely on such certificate as though it were a representation and General Counsel-- Corporate Affairs warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, and Xxxxx Xxxx & Xxxxxxxxdated as of such date, special counsel to in substantially the Company, dated the Closing Date, to the effect form set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than on Exhibit 5.1.5 hereto;
5.1.6 the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager Company shall have received on delivered to ` such Investor duly executed certificates representing the Closing Date an opinion of special counsel for Shares, Series C Warrant and Series D Warrant being purchased by such Investor;
5.1.7 the Underwriters (the selection of whom shall be approved by the Company), dated the Closing Date, to the effect set forth in 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 included if the Offered Securities are convertible.
(f) The Manager Company shall have received on executed and delivered to such Investor the Closing Date a letter, dated the Closing Date, Registration Rights Agreement;
5.1.8 there shall have been no material adverse change in form and substance satisfactory to the Manager, from the Company's independent public accountants, containing statements and information consolidated business or financial condition since the date of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the Company's most recent unaudited financial statements and certain financial information contained in the Disclosure Documents;
5.1.9 there shall be no injunction, restraining order or incorporated by reference into decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the Prospectus. [The several obligations consummation of the Underwriters to purchase Additional Securities hereunder are subject to delivery to transactions contemplated hereby or by the Manager on other Transaction Documents; and
5.1.10 the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is aggregate Purchase Price to be offered to Underwriterspaid at the Closing by the 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. The several 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 Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 has 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 agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by such Investor on or before the Closing Date. The officer signing and delivering such certificate may rely upon 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 best consummation of his knowledge as to proceedings threatened.the transactions contemplated hereby, by the other Transaction Documents or by the Certificate of Designation;
(d) The Manager 5.2.4 each Investor shall have received on executed each of the Closing Date opinions of Piper & Marbury, Maryland counsel Transaction Documents to which it is a party and delivered the same to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel ; and
5.2.5 each Investor shall have delivered to the Company, dated Company the Purchase Price for Preferred Stock and the Warrants being purchases by it at the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws wire transfer of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwritersimmediately available funds.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Securities Purchase Agreement (Citadel Security Software Inc)
Conditions to Closing. 6.1 The several obligations obligation of PDL BioPharma, Inc. to purchase the Underwriters hereunder are First Closing Securities at the First Closing is subject to the fulfillment to PDL BioPharma, Inc.’s satisfaction, on or prior to the First Closing Date, of the following conditions, any of which may be waived by PDL BioPharma, Inc.:
(a) No stop order suspending the effectiveness of the Registration Statement is in effect, The representations and no proceedings for such purpose are pending before or threatened warranties made by the CommissionCompany in Section 4 hereof shall be true and correct on the First 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 First Closing Date.
(b) Subsequent With the exception of declarations of effectiveness by the Commission with respect to the execution registration statements contemplated in the Registration Rights Agreement, the Company shall have obtained any and delivery all consents, permits, approvals, registrations and waivers necessary for consummation of the Underwriting Agreement purchase and prior sale of the First Closing Securities and the consummation of the other transactions contemplated by the Transaction Documents, all of which shall be in full force and effect.
(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, there 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, or any development involving a prospective material adverse change, change in the condition, financial or otherwise, or in the earnings, Company’s consolidated business or operationsfinancial 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 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 its subsidiariescorrect on the Second Closing Date, taken except to the extent any such representation or warranty expressly speaks as a wholeof an earlier date, from 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 that set forth cover the Second Closing Securities as contemplated in the ProspectusRegistration 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.
(c) The Manager 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 received on filed with Nasdaq an additional Notification Form: Listing of Additional Shares for the Closing Date a certificate, dated the Closing Date and signed by an executive officer listing of the Company, Securities subject to the effect set forth in clause (b) above and Second Closing, a copy of which shall have been provided to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedPurchasers.
(d) The Manager 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 on a certificate signed by the Chief Executive Officer or the Principal Financial Officer, dated as of the Second Closing Date opinions of Piper & MarburyDate, Maryland counsel certifying to the Companyfulfillment of the conditions specified in subsections (a), Xxxxx X. Xxxxxx(b), Esq(c), (d) (h), (j) and (k) of this Section 6.2.
(f) Each Purchaser shall have received a certificate signed by the Secretary, Vice President 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 General Counsel-- Corporate Affairs for 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 Xxxxx Xxxx & XxxxxxxxPopeo, special P.C., counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Second Closing Date, in form and substance satisfactory reasonably acceptable to the ManagerPurchasers 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, from 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 Second Closing.
(j) There shall not have occurred any material adverse change in the Company's independent public accountants, containing statements and information ’s consolidated business or financial condition since the date of the type ordinarily included 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 approval to be obtained.
(l) Stockholder Approval shall have been obtained and deemed effective and evidence of such Stockholder Approval in accountants' "comfort letters" a form reasonably acceptable to underwriters 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”). Such 12-Month Operating Budget shall be prepared by the Company in good faith and include all material expenses reasonably expected to be incurred by the Company through the expiration of the 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:
(a) The representations and warranties made by PDL BioPharma, Inc. in Section 5 hereof shall be true and correct in all material respects on 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 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 Purchaser, any of which may be waived by the Company:
(a) The representations and warranties made by such Purchaser in Section 5 hereof shall be true and correct in all material respects on the Second Closing Date. Such Purchaser shall have performed in all material respects all obligations and covenants herein required to be performed by it on or 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.
(c) 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.
(d) The Company shall have received a Purchase Notice with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Second Closing Securities hereunder are subject to delivery to the Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriterssold in the Second Closing.
(e) Stockholder Approval shall have been obtained and deemed effective.
Appears in 1 contract
Samples: Securities Purchase Agreement (Evofem Biosciences, Inc.)
Conditions to Closing. 3.4.1 The several obligations Company’s obligation to complete the purchase and sale of the Underwriters hereunder are Shares and deliver such stock certificate(s) to the Purchaser at the Closing shall be subject to the following conditions:
, any one or more of which may be waived by the Company: (ai) No stop order suspending receipt by the effectiveness Company of same-day funds in the full amount of the Registration Statement is in effect, purchase price for the Shares being purchased hereunder; (ii) completion of the purchases and no proceedings for such purpose are pending before or threatened sales under the Agreements with all of the Other Purchasers; and (iii) the accuracy of the representations and warranties made by the Commission.
(b) Subsequent to Purchaser and the execution and delivery fulfillment of those undertakings of the Underwriting Agreement and Purchaser to be fulfilled prior to the Closing DateClosing; 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 accept delivery of such stock certificate(s) and to pay for the Shares evidenced thereby shall be subject to the following conditions: (i) the accuracy in all material respects of the representations and 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, there shall not have occurred any material adverse change(ii) the filing by the Company of the Certificate of Amendment with the Delaware Secretary of State, or any development involving (iii) receipt of a prospective material adverse changecertificate signed by the Secretary of the Company to which is attached a true, in complete and correct copy of each of the conditionamended and restated certificate of incorporation of the Company, financial or otherwise, or in the earnings, business or operations, amended and restated bylaws of the Company and its subsidiaries, taken as a whole, from that set forth in certain resolutions of the Prospectus.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer Board of Directors of the Company, to the effect set forth that: (1) except for the filing of the Certificate of Amendment and certificates of designation in clause (b) above connection with the Company’s Series B1 Convertible Preferred Stock and Series B2 Convertible Preferred Stock, no document with respect to any amendment to the effect that the representations and warranties certificate of incorporation of the Company contained has been filed in the office of the Delaware Secretary of State since, and no action has been taken or, to the best knowledge of the Secretary of the Company, is contemplated by the Board of Directors or the stockholders of the Company, for the 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 has been taken or is currently pending before the Board of Directors or stockholders of the Company and (3) the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement are true and correct the consummation of the transactions contemplated by this Agreement have not been altered, amended or superseded and remain in full force and effect as of the Closing Date date hereof and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 Purchasers agreeing under the Agreements to matters governed purchase Shares for an aggregate purchase price of at least $5,000,000 shall have entered into the Agreements. The Purchaser’s obligations hereunder are expressly not conditioned on the purchase by laws other than the federal law any or all of the United States Other Purchasers of America, on an opinion or opinions of local counsel satisfactory the Shares that they have agreed 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Manager, purchase from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. 6.1. The several Company's and the Shareholders' Conditions to Close. The ------------------------------------------------------- obligations of the Underwriters hereunder Company and the Shareholders under this Agreement are subject to the satisfaction at or prior to the Closing of each of the following conditions, but compliance with any or all of such conditions may be waived, in writing, by the Company or the Shareholders, as the case may be:
(a) No stop order suspending the effectiveness The representations and warranties of the Registration Statement is Purchaser contained in effect, this Agreement shall be true and no proceedings for such purpose are pending before or threatened by correct on the Commission.date hereof and on the Closing Date (except to the extent that they expressly relate to an earlier date);
(b) Subsequent The Purchaser shall have performed and complied in all material respects with all of 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 execution Closing;
(c) The Purchaser and delivery the Company shall have received all approvals and actions of or by all Governmental Bodies, which are necessary to consummate the transactions contemplated hereby;
(d) On the Closing Date, there shall be no injunction, restraining order or decree of any nature of any court or Governmental Body in effect that restrains or prohibits the consummation of the Underwriting transactions contemplated by 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 carrying out of the transactions contemplated by this Agreement;
(f) A certificate, dated as of the Closing, signed by an officer of the Purchaser to the effect set forth in clauses (a) through (e), inclusive, of this Section 6.1;
(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 Close. The obligations of the ----------------------------------- Purchaser under this Agreement and are subject to the satisfaction at or prior to the Closing of each of the following 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 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 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;
(b) The representations and warranties of 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 with all the covenants and agreements contained in this Agreement and satisfied all the conditions required by this Agreement to be performed or complied with or satisfied by it or them at or prior to the Closing;
(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 Governmental Body in effect that restrains or prohibits the consummation of the transactions contemplated by 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 Company's Board of Directors and its remaining shareholders), in form and substance reasonably satisfactory to the Purchaser, to the transactions contemplated by this Agreement;
(h) Since the Balance Sheet Date, there shall not have occurred any material adverse change, change which would have or any development involving would be likely to have a prospective material adverse changeMaterial Adverse Effect with respect to the Company;
(i) The Shareholders shall have entered into the Escrow Agreement, in the conditionform of Exhibit "1" hereto and the Shareholders Agreement, financial or otherwise, or in the earningsform of ----------- Exhibit "2" hereto, business or operationsXxxx Xxxxx shall have entered into the Xxxxx Employment ----------- Agreement, of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.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;
(cj) The Manager Purchaser shall have received on the Closing Date a certificateWorking Capital Statement;
(k) Certificates, dated as of the Closing Date and Closing, signed by an executive officer the Shareholders and by the President of the Company, respectively, to the effect set forth in clause clauses (b) above and to (c) of this Section 6.2, with the effect that Certificate signed by the representations and warranties President of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the additional effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
clauses (e) The Manager shall have 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 (ii), (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (ib) through (iv) in Exhibit C. In giving such opinionh), such counsel may relyinclusive, 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters6.2.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters Company and Xxxxxx Xxxxxxx hereunder are subject to the following 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.
(c) The Manager Xxxxxx Xxxxxxx shall have received on the Closing Date a certificate, 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 contained in this Stock Purchase Agreement are true and correct as of the Closing Date and that the Company has complied in all material respects with all of the agreements and satisfied all of the obligations conditions on its part to be performed or satisfied hereunder and under the Registration Rights Agreement on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(db) The Manager Xxxxxx Xxxxxxx shall have received on the Closing Date opinions (i) the opinion of Piper Dolgenos Xxxxxx & MarburyXxxxxx LLP, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits AExhibit A attached hereto, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 (ii) an opinion of Piper & Marburycounsel for Unilabs Holdings SA, in each case so long as such opinion shall be a Panama corporation (the "Parent"), dated the Closing Date 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 form and substance satisfactory to the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersExhibit C attached hereto.
(ec) The Manager Xxxxxx Xxxxxxx shall have 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 (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 a copy of the United States of America, on an opinion or opinions of local counsel satisfactory to Registration Rights Agreement duly executed and delivered by the Manager, so long as each such opinion shall be dated the Closing Date Company 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. _______________ (5ii) References to be included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 copy of the type ordinarily included in accountants' side letter (the "comfort letters" to underwriters with respect to Side Letter Agreement") among Xxxxxx Xxxxxxx, the financial statements Parent, the Grandparent and certain financial information contained in or incorporated Xxxxxx Xxxxx of Xxxxxx Xxxxxxxxxxxxx, 0000 Xxxxxxx, Xxxxxxxxxxx (the "Controlling Shareholder"), duly executed and delivered by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of Parent, Grandparent and such opinionsControlling Shareholder, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance certain tag-along rights of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersXxxxxx Xxxxxxx.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters Purchasers to --------------------- purchase the Shares on the Closing Date hereunder are subject to the following 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 tender offer by the Commission.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) 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.
(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 contained in this Agreement are 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 (except for those made as of a specified date, which shall be true and correct as of the Closing Date such date) and that the Company has complied with shall have performed in all of the agreements and satisfied all of the material respects its obligations on its part hereunder required to be performed or satisfied on or before the Closing Date. The officer signing Date and delivering such certificate may rely upon the best Placement Agent shall have received an Officers' Certificate addressed to the Purchasers and signed by the Chief Executive Officer and the Chief Financial Officer to the effect of his knowledge as to proceedings threatened.the foregoing;
(c) the Purchasers shall have received a legal opinion or opinions covering the matters set forth in Annex B; and
(d) The Manager no injunction, writ, restraining order or other order of any nature arising out of the 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 on an Officers' Certificate addressed to the Closing Date opinions Purchasers and signed by the Chief Executive Officer and the Chief Financial Officer to the effect of Piper & Marbury, Maryland counsel the foregoing insofar as the foregoing relates to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several 5.1 Conditions to Investors' Obligations at the Closing. Each Investor's obligations to effect the Closing, including without limitation its obligation to purchase 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 Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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 and the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
(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 5.1.1 the representations and warranties of the Company contained 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 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 Company shall have delivered to such Investor a certificate, signed by a duly authorized officer of the Company, certifying that the conditions specified in 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 correct 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 the opinions, dated as of the Closing Date and that Date, of (i) as to matters under Cayman Islands law, Cayman Islands counsel for the Company has 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 the form attached hereto as EXHIBIT C-3;
5.1.6 the Company and, to the extent applicable, Games and Software, shall have executed and delivered to such Investor the Registration Rights Agreement and each other Transaction Document; and
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 and by the other Transaction Documents.
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 Closing Date:
5.2.1 the representations and warranties of 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, 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 such Investor shall have complied with or performed all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement and in the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by such Investor on or before the Closing Date. The officer signing 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 and delivering by the other Transaction Documents;
5.2.4 such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager Investor shall have received on executed each Transaction Document to which it is a party and shall have delivered the Closing Date opinions of Piper & Marbury, Maryland counsel same to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for ; and
5.2.5 such Investor shall have provided the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel Company with any forms reasonably requested by the Company prior to the Company, dated Closing to establish that no payments to such Investor under the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 Notes will 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.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriterswithholding tax in any taxing jurisdictions.
Appears in 1 contract
Samples: Note Purchase Agreement (CDC Corp)
Conditions to Closing. The several obligations obligation of each Investor to purchase and pay for the Underwriters hereunder are Series G Shares to be purchased by each Investor at the Initial Closing or any Additional Closing (each, a "Closing") is subject to the satisfaction at or prior to such Closing of each of the following conditions:
(a) No stop order suspending the effectiveness Company shall have duly authorized and filed a Master Certificate of Designation with the Secretary of State of the Registration Statement is State of Delaware substantially in effectthe form attached hereto as Exhibit 1, and no proceedings a Designation of Subseries for such purpose are pending before or threatened by the Commission.Subseries to be issued as provided therein;
(b) Subsequent to the execution and delivery each of the Underwriting Agreement Investors not already a party thereto shall have entered into that certain Stockholders' Agreement, by and prior to between the Closing DateCompany, there shall not have occurred any material adverse changeXxx X. Xxxxxxxxxx, or any development involving a prospective material adverse changeXxxxxx Xxxxxx Xxxxxxx, in the conditionXxxxx X. Xxxxxxx and Xxxxxxx X. Xxxx, financial or otherwise, or in the earnings, business or operations, and certain other shareholders of the Company and its subsidiaries, taken as a whole, from that set forth in who own shares of the Prospectus.Series F Preferred Shares of the Company (the "Stockholders' Agreement");
(c) The Manager shall have received on the Closing Date a certificateXxxxxxxx Ingersoll Professional Corporation, dated the Closing Date and signed by an executive officer of the CompanyPhiladelphia, to the effect set forth in clause (b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & MarburyPennsylvania, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel shall have delivered to the Companyeach Investor a legal opinion, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance reasonably satisfactory to the ManagerInvestors;
(d) at each Closing where NBCC is an Investor, from 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 independent public accountants, containing statements and information each Operating Subsidiary's resolutions of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements Board of Directors authorizing and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations approving this Agreement and all of the Underwriters 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 and unmodified as of such Closing Date;
(iii) a good standing certificate for the Company and each Operating Subsidiary from the Secretary of State of the jurisdiction of 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 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 Company filed with the Securities and Exchange Commission (the "Commission") since the date of this Agreement, a copy of which was delivered to each Investor prior to such Investor's agreement to purchase Additional Securities hereunder are subject to delivery to the Manager any such Subseries of Series G Shares; and (y) such other matters as may be set out in such Certificate, none of which could have a material adverse effect on the Option Closing Date of such opinionsCompany and the Operating Subsidiaries, certificates and documents contemplated by this Section 5 taken as such Manager shall reasonably request relating to a whole, in the issuance discretion of the Additional Securities.](6Investors; and
(vi) _______________ (6) Include if a green shoe is to be offered to Underwriterssuch other documents, instruments, and certificates as the Investors may reasonably request.
Appears in 1 contract
Samples: Stock Purchase Agreement (North American Technologies Group Inc /Mi/)
Conditions to Closing. 11.1 The several obligations Purchaser’s obligation to consummate the purchase of the Underwriters Sellers Shares hereunder are and the grant of a Put Option to Mazal pursuant to the Option Agreement, is subject to the fulfillment, prior to or at the Closing, of each of the following conditions:conditions (any or all of which may be waived by the Purchaser subject to applicable law):
(a) No stop order suspending Subject to non-material changes in the effectiveness ordinary course of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Subsequent business and/or pursuant to the execution and delivery of the Underwriting 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 changerelated documents, 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.
(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 all representations and warranties of the Company Shareholders and the Company, as the case may be, contained in this Agreement are herein shall be true and correct in all material respects at the time of the Closing as though made again at that time and all actions required to be performed and documents or instruments required to be delivered, as provided herein, including the Deeds, shall have been so performed and delivered.
b) The Company shall have registered the transfer of the Sellers Shares in the Company's Shareholders Register, followed by the delivery of a copy of such register to the Purchaser.
c) The Purchaser shall have received the Capitalization Legal Opinion, in substantially the form attached hereto as Schedule 11.1(c) dated as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper signed by X. Xxxxxxxx, Gilat, Knoller, Graus, Salomon & MarburyCo. Law Offices, Maryland counsel to the Company.
d) The Purchaser's Board of Directors, Xxxxx X. XxxxxxAudit Committee and shareholders respectively shall have duly approved the transactions contemplated hereby in accordance with Sections 270(4) and 275 of the Israeli Companies Law – 1999.
e) The Company shall have received copies of all third party waivers, Esq.consents and approvals necessary, Vice President and General Counsel-- Corporate Affairs for the execution, delivery and performance of this Agreement, including without limitation the approval of (i) the Office of the Chief Scientist at the Israeli Ministry of Industry, Trade and Labor; and (ii) Bank Leumi L'Israel Ltd. (the "Bank").
f) The Company shall have received duly executed notices of resignation of any individuals from serving as members of the Company’s board of directors as may have been requested in writing by the Purchaser at least 3 days before the Closing.
g) That certain Founders Agreement dated April 6, 2000, as amended (including by that certain Addendum Agreement made as an addendum thereto in 2003), which was made by and Xxxxx Xxxx & Xxxxxxxxbetween a Shareholder and other Company shareholders (the "Founders Agreement") shall have been duly terminated in accordance with its terms and such termination shall be in effect at the Closing.
h) The Purchaser shall have caused the Bank to release the Sellers from all their obligations according to the guarantees provided by the Sellers to the Bank, special counsel with regard to the Company, dated 's debt of USD 714,000 plus interest as the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwritersdate hereof.
(ei) The Manager Greenstone shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Manager, from repaid the Company's independent public accountants, containing statements and information debt of approximately US$ 2.25 million (as of the type ordinarily included in accountants' "comfort letters" to underwriters with respect date hereof) to the financial statements Union Bank of Israel Ltd.
j) The Convertible Loan Amount, the Convertible Commissions and certain financial information contained the Union Bank Guarantee Debt shall have been converted into Ordinary Shares in accordance with Section 6.6(c) above.
11.2 The Sellers' obligations to consummate the sale of their respective Holdings hereunder is subject to the fulfilment, prior to or incorporated by reference into at the Prospectus. [The several obligations Closing, of each of the Underwriters to purchase Additional Securities hereunder are following conditions (any or all of which may be waived by the relevant Seller subject to delivery applicable law):
a) All representations and warranties of the Purchaser contained herein shall be true and correct in all material respects at the time of the Closing (subject to the Manager on the Option Closing Date changes in ordinary course of such opinions, certificates business) as though made again at that time and all actions required to be performed and documents contemplated by this or instruments required to be delivered, as provided herein, shall have been so performed and delivered.
b) The Company's Board of Directors and shareholders respectively shall have duly approved in accordance with Section 5 as such Manager shall reasonably request relating to the issuance 272 of the Additional Securities.](6Israeli Companies Law – 1999 the transactions contemplated hereby and the conversion of the Shareholders' shares in the Convertible Loans, in the Convertible Commissions and in the Union Bank Guarantee Debt in accordance with Section 6.6(c) _______________ (6) Include if a green shoe is to be offered to Underwritersabove.
Appears in 1 contract
Samples: Share Purchase Agreement (Greenstone Industries Ltd.)
Conditions to Closing. The several obligations of the Underwriters Allied Capital to enter into this Agreement and to perform its obligations hereunder are is subject to the satisfaction of the following conditionsconditions on or prior to the Closing Date:
(a) No stop order suspending the effectiveness The representations and warranties set forth in Article IV hereof shall be true and correct on and as of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the CommissionClosing Date.
(b) Subsequent 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:
(i) a favorable written opinion of counsel to the execution Credit Parties (A) dated the Closing Date, (B) addressed to Allied Capital and delivery (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 Underwriting Agreement other Loan Documents, executed by each of the parties thereto (other than Allied Capital);
(iii) for each Credit Party: (A) a copy of the certificate or articles of incorporation or similar organizational documents, including all amendments thereto, of such Credit Party, certified as of a recent date by the Secretary of State or other appropriate agency of the jurisdiction of its organization, and a certificate as to the good standing of such Credit Party as of a recent date, from such Secretary of State or other appropriate agency; (B) a certificate of the Secretary or Assistant Secretary of such Credit Party dated the Closing Date and certifying (1) that attached thereto is a true and complete copy of the by-laws or similar operational documents or agreements of such Credit Party as in effect on the Closing Date and at all times since a date prior to 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 certificate of good standing furnished pursuant to clause (A) above, and (4) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such 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, 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.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Companyincluding, to the effect set forth in clause (b) above and to the effect that the representations and warranties extent invoiced, reimbursement or payment of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part out-of-pocket expenses required to be performed reimbursed or satisfied on paid by the Borrowers hereunder or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.under any other Loan Document;
(dv) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President Audited Financials and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may relyInterim Financials, as to matters governed by laws other than the laws of the State of California 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, described 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersSection 4.6; and
(vi) insurance certificates evidencing compliance with Section 6.2.
(e) The Manager Credit Parties shall have received on entered into the Closing Date an opinion of special counsel for transaction documents with respect to the Underwriters (the selection of whom Senior Credit Facility and Allied Capital shall be approved by the Company), dated the Closing Date, to the effect set forth in 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 provided a copy 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 included if the Offered Securities are convertible.documentation relating thereto;
(f) The Manager After giving effect to the transactions contemplated hereby, the Credit Parties and their Subsidiaries shall not have outstanding any Indebtedness other than (i) the Senior Debt in outstanding principal amount of not greater than $35,000,000, (ii) the extension of credit under this Agreement and (iii) the Indebtedness listed on Schedule 4.7.
(g) No event that has or reasonably would be expected to have a Material Adverse Change shall have occurred since December 31, 2003.
(h) Allied Capital shall have received on all necessary corporate approvals of the Closing Date Transaction, and all regulatory requirements applicable to Allied Capital shall have been satisfied.
(i) Allied Capital shall be reasonably satisfied that, upon the filing of the Financing Statements with the appropriate Governmental Authorities, will hold a letterperfected Lien in the Collateral described respectively therein, dated subject only to Permitted Liens.
(j) Allied Capital shall have received from the Closing DateParent Company, in a form and substance satisfactory to Allied Capital, the ManagerWarrant Amendments.
(k) Allied Capital shall have received such other documents, from the Company's independent public accountants, containing statements instruments 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall Allied Capital may reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersrequest.
Appears in 1 contract
Conditions to Closing. 5.1 The several obligations following are conditions of the Underwriters hereunder are subject Agent’s and the Subscribers’ obligations to close the Offering, which conditions the Corporation covenants to exercise its commercially reasonable best efforts to have fulfilled at or prior to the following conditionsTime of Closing, which conditions may be waived in writing in whole or in part by the Agent on its own behalf and on behalf of the Subscribers:
(a) No stop order suspending the effectiveness Corporation’s board of directors will have authorized and approved (i) this Agreement and the Ancillary Documents, (ii) the issuance of the Registration Statement is in effectSpecial Warrants and Compensation Options, and no proceedings for such purpose are pending before all securities issuable directly or threatened by indirectly thereunder, and (iii) all matters relating to the Commission.foregoing;
(b) Subsequent the Corporation will have made and/or obtained the necessary filings, approvals, consents and acceptances of the appropriate regulatory authorities in the Qualifying Jurisdictions (other than obtaining the Final Receipt and a receipt for the Preliminary Prospectus), on terms which are acceptable to the Corporation and the Agent, each acting reasonably, it being understood that the Agent will do all that is reasonably required to assist the Corporation to fulfil this condition;
(c) the representations and warranties of the Corporation contained in this Agreement and the Ancillary Documents are true and correct in all material respects (or, if qualified by materiality, in all respects) as at the Time of Closing, with the same force and effect as if made on and as at the Time of Closing, except for such representations and warranties which are in respect of a specific date in which case such representations and warranties will be true and correct, in all material respects (or, if qualified by materiality, in all respects), as of such date, after giving effect to the transactions contemplated by this Agreement, and the Corporation will have complied with all the covenants and satisfied all the terms and conditions of this Agreement to be complied with and satisfied by the Corporation at or prior to the Time of Closing;
(d) the Corporation will have caused a favourable legal opinion to be delivered by its counsel addressed to the Agent and the Subscribers with respect to such matters as the Agent may reasonably request relating to this transaction, acceptable in all reasonable respects to the Agent’s Counsel, including substantially to the effect that:
(i) the Corporation has been incorporated and is validly subsisting under the laws of its jurisdiction of incorporation and has all requisite corporate power, authority and capacity to carry on its business as now conducted and to own, lease and operate its properties and assets and to perform its obligations hereunder;
(ii) the Corporation has the corporate capacity and power to execute and deliver this Agreement and the Ancillary Documents and to perform its obligations hereunder and thereunder;
(iii) this Agreement and the Ancillary Documents have been duly authorized, executed and delivered by the Corporation and are legally binding upon the Corporation and enforceable in accordance with their respective terms (subject to the Enforceability Qualifications and such other qualifications as are customary in such circumstances);
(iv) all necessary corporate action has been taken by the Corporation to authorize the execution and delivery of the Underwriting this Agreement and prior the Ancillary Documents, and the performance of its obligations hereunder and thereunder and this Agreement and the Ancillary Documents have been duly executed and delivered by the Corporation;
(v) as to the authorized and issued capital of the Corporation;
(vi) the Special Warrants having been validly created and issued and the Compensation Options have been validly issued;
(vii) the execution and delivery of this Agreement and the Ancillary Documents, the fulfilment of the terms hereof and thereof, the issue, sale and delivery on the Closing Date of the Special Warrants and the Compensation Options, do not constitute a default under, any applicable Law or any term or provision of the Corporation’s constating documents;
(viii) the form and terms of the Special Warrant Indenture, the Purchase Warrant Indenture and the certificates evidencing the Special Warrants and to evidence the Purchase Warrants have been approved and adopted by the directors of the Corporation;
(ix) the offering, sale, issuance and delivery by the Corporation of the Special Warrants to the Subscribers and the Compensation Options to the Agent are exempt from the prospectus requirements of the Applicable Securities Laws of the Qualifying Jurisdictions and no documents are required to be filed, proceedings taken or approvals, permits, consents, orders or authorizations obtained under the Applicable Securities Laws of the relevant Qualifying Jurisdictions to permit such offering, sale, issuance and delivery, other than the filing of customary private placement reports, fees or undertakings required to be filed under such Laws; and
(x) as to the first trade rights and restrictions relating to the Special Warrants, the Unit Securities and the Warrant Shares under Canadian Applicable Securities Laws. In giving such opinions, the Corporation’s Counsel will be entitled to arrange for and rely, to the extent appropriate in the circumstances, upon local counsel, it being understood that certain of the opinions which are not matters of British Columbia, Alberta or Ontario law may be opined upon directly by local counsel, and that the Corporation’s Counsel will not be required to also give such opinions, and will be entitled as to matters of fact not within their knowledge to rely upon a certificate of fact from responsible persons in a position to have knowledge of such facts and their accuracy, and such opinion will be subject to customary qualifications, assumptions, exceptions and reliances. The Corporation agrees, and the aforesaid legal opinion will expressly provide, that the Agent may deliver copies of the opinion to each of the addressees thereof;
(e) the Agent will have received favourable legal opinions, dated the Closing Date and addressed to the Agent and the Subscribers, from counsel to the Corporation, as to (i) the incorporation and existence of the Corporation’s Subsidiary, (ii) the Corporation’s Subsidiary having the requisite corporate power and capacity to own and lease its properties and assets and to conduct its businesses as presently carried on, and (iii) the registered ownership of the issued and outstanding shares of the Corporation’s Subsidiary, and as to such other legal matters which the Agent’s Counsel may reasonably request;
(f) the Agent will have received legal opinions, dated the Closing Date and addressed to the Agent, from counsel to the Corporation, in form and substance acceptable to the Agent and the Agent’s Counsel, acting reasonably, as to the title and ownership interests of the Project Option Grantors, and the interests of the Corporation’s Subsidiary, in the Chilean Projects (the "Title Opinion");
(g) the Agent will have received a certificate dated the Closing Date signed by the Chief Executive Officer and the Chief Financial Officer of the Corporation or such other officers acceptable to the Agent, in form and substance acceptable to Agent with respect to:
(i) the constating documents of the Corporation;
(ii) the resolutions of the directors of the Corporation relevant to the Offering, the Special Warrants, the Compensation Options, the Underlying Securities, the Warrant Shares and the authorization of this Agreement and the Ancillary Documents; and
(iii) the incumbency and signatures of signing officers of the Corporation;
(h) the Agent will have received certificates of status and/or compliance (or the equivalent), where issuable under applicable Law, for the Corporation and the Corporation’s Subsidiary, each dated within two days of 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 such other reasonable period as a whole, from that set forth in the Prospectus.may be dictated by local requirements;
(ci) The Manager shall the Corporation will have received on delivered to the Closing Date Agent a certificate, certificate dated the Closing Date and signed by an executive officer the Chief Executive Officer and Chief Financial Officer of the CompanyCorporation, certifying for and on behalf of the Corporation, and not in their personal capacities, with respect to the effect set forth in clause following matters:
(bi) above and to the effect that the representations and warranties of the Company Corporation contained in this Agreement are true and correct in all material respects (or, if qualified by materiality, in all respects) as at the Time of Closing, with the same force and effect as if made on and as at the Time of Closing, except for such representations and warranties which are in respect of a specific date in which case such representations and warranties were true and correct, in all material respects (or, if qualified by materiality, in all respects), as of such date, after giving effect to the Closing Date and that transactions contemplated by this Agreement;
(ii) the Company has Corporation having complied with all of the agreements covenants and satisfied all the terms and conditions of this Agreement to be complied with and satisfied by the Corporation at or prior to the Time of Closing;
(iii) no order, ruling or determination having the effect of ceasing or suspending trading in any securities of the obligations on its part to be performed Corporation or satisfied on prohibiting the sale of the Special Warrants or before the Closing Date. The officer signing and delivering such certificate may rely upon distribution of the best Unit Securities or any of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing DateCorporation’s issued securities having been issued or, to the effect set forth knowledge of such officers, threatened; and
(iv) there having not occurred a Material Adverse Effect, or any change or development that would reasonably be expected to result in Exhibits Aa Material Adverse Effect, B and Cor the coming into existence or discovery of a new material fact, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than as disclosed to the laws Agent;
(j) the Corporation will have accepted, executed and delivered the Special Warrant Indenture, the Purchase Warrant Indenture, the Special Warrant certificates’ and the other agreements, certificates or instruments pursuant to which the Special Warrants and Compensation Options are to be issued;
(k) the Corporation will have caused each of the State of California directors and the federal law senior officers 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 Corporation 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, enter into lock-up agreements in each case so long as such opinion shall be dated the Closing Date and in a form and substance satisfactory to the ManagerAgent, acting reasonably, which will be negotiated in good faith and shall expressly permit contain customary provisions, pursuant to which each such person agrees, for a period of 120 days after the Underwriters Listing, not to rely thereon as directly or indirectly, offer, sell, contract to sell, grant any option to purchase, make any short sale, transfer, or otherwise dispose of or monetize the economic value of (or announce any intention to do any of the foregoing) any securities of the Corporation, whether now owned directly or indirectly, or under their control or direction, or with respect to which each has beneficial ownership, subject to the following exceptions: (i) if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date Corporation receives an opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company)offer, dated the Closing Datewhich has not been withdrawn, to enter into a transaction or arrangement, or proposed transaction or arrangement, pursuant to which, if entered into or completed substantially in accordance with its terms, a party could, directly or indirectly acquire an interest (including an economic interest) in, or become the effect set forth in paragraphs holder of, 100% of the total number of Common Shares, whether by way of takeover offer, scheme of arrangement, shareholder approved acquisition, capital reduction, share buyback, securities issue, reverse takeover, dual-listed company structure or other synthetic merger, transaction or arrangement; (ii), ) in respect of sales to affiliates of such shareholder; (iii) and as a result of the death of any individual shareholder; or (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in Exhibit C. In giving such opinionwith the written consent of the Agent, such counsel may relyconsent not to be unreasonably withheld or delayed;
(l) at the Time of Closing, as the Corporation will not be the subject of a cease trading order made by any Securities Commission which has not been rescinded; and
(m) prior to matters governed by laws other than the federal law Time of Closing, the Agent, Agent’s Counsel and the Agent’s technical consultants will have been provided with timely access to all information reasonably required to permit them to conduct a due diligence investigation of the United States Corporation and its consolidated business operations, properties, assets, affairs, prospects and financial condition, including access to management of Americathe Corporation, on an opinion the legal counsel of the Corporation in connection with one or opinions of local counsel satisfactory more due diligence sessions to be held prior 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 included if the Offered Securities are convertibleTime of Closing.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Agency Agreement
Conditions to Closing. The several obligations of 8.1 F5 Finishes Closing Conditions F5 Finishes’ obligation to close the Underwriters hereunder are Transaction is subject to the satisfaction of each of the following conditionsconditions (the “F5 Finishes Closing Conditions”) at or prior to Closing:
(a) No stop order suspending the effectiveness of the Registration Statement is Shareholder’s representations and warranties in effectArticle 4, and no proceedings for such purpose are pending before as qualified or threatened limited 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, exceptions in the conditionSchedules to Article 4, financial or otherwise, or in the earnings, business or operations, of the Company are true and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(c) The Manager shall have received correct on the Closing Date a certificate, dated the as if made at and as of 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 other than representations and warranties that address matters as of the Company contained in this Agreement are a certain date, which were true and correct as of the Closing Date that date);
(b) Shareholder has executed and that the Company has complied with delivered all of the agreements 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 satisfied in all material respects all of the obligations other obligations, agreements and conditions under this Agreement that he is required to perform, comply with or satisfy at or prior to Closing;
(c) each Notice or filing listed on its part to be performed Schedule 4.5 has been duly given or satisfied made, and each Consent or Permit listed on or before the Closing Date. The officer signing Schedule 4.5 has been obtained and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.is in full force;
(d) The Manager shall F5 Finishes and Shareholder have received agreed on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California Financial Statements 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.Interim Financial Statements;
(e) The Manager shall have received on the Closing Date an opinion of special counsel Company’s adjusted earnings before interest, taxes, depreciation and amortization for the Underwriters (the selection of whom shall be approved by the Company)12-month period ended December 31, dated the Closing Date, to the effect set forth in 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 included if the Offered Securities are convertible.2018 was $ 698,247;
(f) The Manager consistent with Section 8.1(e), above, after Xxxxxx, LLP completes its audit of the Company, F5 Finishes is satisfied with the Company’s Financial Statements;
(g) no material adverse change in the Company’s assets, financial condition, operations, operating results or prospects has occurred since the date of this Agreement;
(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 received on the cash as of 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 an amount not less than $150,000; and
(m) closing of the type ordinarily included in accountants' "comfort letters" to underwriters other combination agreements with respect to the financial statements Combining Companies and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations closing of the Underwriters to purchase Additional Securities hereunder are subject to delivery to IPO have both taken place concurrently with the Manager on the Option Closing Date closing of such opinions, certificates and documents contemplated by this Agreement. F5 Finishes may waive any condition specified in this Section 5 as such Manager shall reasonably request relating 8.1 by a written waiver delivered to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is Shareholder at any time prior to be offered to Underwritersor at Closing.
Appears in 1 contract
Conditions to Closing. The several 5.1 Conditions to Xxxxxxxx'x Obligations at Closing. Xxxxxxxx'x ----------------------------------------------- obligations at the Closing, including without limitation its obligation to exchange the Series B Preferred Stock for the Series B-2 Preferred Stock, are conditioned upon the satisfaction by the Company (or waiver by Xxxxxxxx) of each of the Underwriters hereunder are subject to following events as of the following conditionsExchange Date:
(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.
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct in all material respects as of the Closing Date and that such date as if made on such date;
5.1.2 the Company has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon Closing;
5.1.3 the best of his knowledge as to proceedings threatened.Exchange Date shall occur on a date that is not later than September 30, 2000;
(d) The Manager 5.1.4 the Company shall have received on the Closing Date opinions delivered to Xxxxxxxx a certificate, signed by an officer of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxcertifying that the conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, Esq., Vice President it being understood that Xxxxxxxx may rely on such certificate as though it were a representation and General Counsel-- Corporate Affairs warranty of the Company made herein;
5.1.5 the Company shall have delivered to Xxxxxxxx an opinion of counsel for the Company, and Xxxxx Xxxx & Xxxxxxxxdated as of such date, special counsel to in substantially the Company, dated the Closing Date, to the effect 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 being exchanged;
5.1.7 the Company shall have executed and delivered the Registration Agreement;
5.1.8 the Common Stock shall be listed for trading on the Nasdaq National Market and no suspension of trading in Exhibits Athe Common Stock on such market shall have occurred and be continuing as of the Exchange Date;
5.1.9 the Company shall have authorized and reserved for issuance the number of shares of Common Stock required to be reserved under paragraph 4.5 hereof, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than shall have provided Xxxxxxxx with reasonable evidence thereof;
5.1.10 the laws Company shall have duly filed the Series B-2 Articles of Amendment with the Secretary of State of the State of California Colorado and a copy thereof certified by the federal law Secretary 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 State of the State of New York Colorado shall have been delivered to Xxxxxxxx and the federal law 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 business, operations, financial condition, properties, prospects or results of operation 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersCompany.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Stock Exchange Agreement (Webb Interactive Services Inc)
Conditions to Closing. The several obligations of City’s obligation to proceed with the Underwriters hereunder are Closing is subject to the following conditions:
(a) No stop order suspending the effectiveness Applicant’s fulfillment of each of the Registration Statement is in effect, and no proceedings for such purpose are pending before following conditions at 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.Closing:
(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 a. All representations and warranties of the Company 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 form of the attached “Exhibit B”.
(2) A Security Agreement covering the Applicant’s equipment. The Security Agreement shall be in the form of the attached “Exhibit C”.
d. The Applicant shall in all material respects have performed its obligations, agreements, and covenants contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on by them, on, or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedClosing.
(d) The Manager e. There shall have received on been no material adverse change in the operation or financial status of the Applicant and the Closing Date opinions of Piper & Marbury, Maryland counsel to shall constitute the Company, Xxxxx X. Xxxxxx, EsqApplicant’s representations that there has been no such material adverse change., Vice President and General Counsel-- Corporate Affairs for
f. In requesting the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws disbursement of the State of California Loan, the Applicant is considered to have represented that the above conditions have been satisfied 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 are continuing to be included if the Offered Securities are convertiblesatisfied.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several obligations obligation of the Underwriters hereunder are subject each Lender to the following 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 enter into this Agreement and prior to make 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.
(c) The Manager shall have received Loans on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, shall be subject to the effect receipt by Agent of each agreement, document and instrument set forth in clause (b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marburyclosing checklist prepared by Agent or its counsel (attached hereto as Exhibit F), Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 ManagerAgent, and such other closing deliverables reasonably requested by Agent and Xxxxxxx, and to the satisfaction of the following 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 expressly permit have occurred and be continuing; MidCap / Cerus / A&R Credit, Security and Guaranty Agreement (Revolving Loan)
(c) the Underwriters 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 rely thereon as if result in such opinion were addressed to Underwriters.a material adverse change; and
(e) The Manager the receipt of the Borrowing Base Certificate, prepared as of the Closing Date. Each Lender, by delivering its signature page to this Agreement, shall be deemed to have received acknowledged receipt of, and consented to and approved, each Financing Document, each additional Operative Document and each other document, agreement and/or instrument required to be approved by Agent, Required Lenders or Lenders, as applicable, 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Credit, Security and Guaranty Agreement (Revolving Loan) (Cerus Corp)
Conditions to Closing. Section 6.1 The several Company's and the Significant Shareholders' Conditions to Close. The obligations of the Underwriters hereunder Company and the Significant Shareholders under this Agreement are subject to the satisfaction at or prior to the Closing of each of the following conditions, but compliance with any or all of such conditions may be waived, in writing, by the Company or the Significant Shareholders, as the case may be:
(a) No stop order suspending The representations and warranties of Parent contained in this Agreement shall be true and correct in all material respects on the effectiveness of date hereof and on the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by Closing Date (except to the Commission.extent that they expressly relate to an earlier date);
(b) Subsequent 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 execution Closing;
(c) Parent and delivery the Company shall have received all approvals and actions of or by all Governmental Bodies, which are necessary to consummate the Underwriting Agreement and prior to transactions contemplated hereby;
(d) On the Closing Date, there shall not be no injunction, restraining order or decree of any nature of any court or Governmental Body in effect that restrains or prohibits the consummation of the transactions contemplated by this Agreement or the Merger Agreement;
(e) No action, suit or proceeding shall have occurred been instituted by any material adverse changeperson or entity (other than the Company or any Significant Shareholder), or threatened by any development involving Governmental Body, before a prospective material adverse changecourt 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 affirmative vote of the holders of not less than two-thirds of the shares of Company Common Stock outstanding and entitled to vote with respect thereto;
(g) Parent and Mergerco shall have executed and delivered to 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 conditionform 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, financial or otherwise, or in the earningsform of Exhibit K hereto (the "Allin Escrow Agreement"), business or operationsXxxxx Xxxxxxx shall have entered into a Stock Escrow Agreement, of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.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;
(ck) The Manager Parent shall have received on the Closing Date settled any outstanding disputes with Lok Technology, Inc., a Delaware corporation;
(l) A certificate, dated as of the Closing Date and Closing, signed by an executive officer of the Company, Parent to the effect set forth in clause clauses (ba) above through (f), inclusive, of this Section 6.1;
(m) The Trust Agreement shall have been terminated;
(n) Receipt by the Company and the Significant Shareholders of 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 effect that the representations and warranties per share value of the Company contained in this Agreement are true and correct as shares of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received Parent Common Stock issued on the Closing Date opinions pursuant to Section 1.4(a)(i);
(o) There shall not have occurred any change which would or would be reasonably likely to have a Material Adverse Effect on Parent and Parent shall have operated in all material respects with the business plan attached hereto as Exhibit J;
(p) The Employment Agreements executed by each of Piper & MarburyXxxxxxx Xxxxx, Maryland counsel to the CompanyChief Executive Officer of Parent, Xxxxx X. XxxxxxXxxxxxx Xxxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Companyof Services of Parent, and Xxxxx Xxxx & XxxxxxxxXxxxxxx, special counsel President of Products of Parent, each attached hereto as Exhibit P, shall be in full force and effect;
(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 Companytransfer of the FDC Contract or otherwise indicated in writing an intention to terminate or modify the FDC Contract in any manner;
(r) The Company shall have received an opinion, dated the Closing Date, to the effect set forth in Exhibits Afrom Xxxxxxxx Xxxxxx, B and C, respectively. In giving based upon such opinion, Xx. information as Xxxxxxxx Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California and the federal law of the United States of America, on an opinion deems necessary 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 appropriate dated the Closing Date (and in form and substance satisfactory which the parties agree to provide as reasonably requested by counsel, including making reasonable representations), to the Manager, and shall expressly permit effect that the Underwriters to rely thereon Merger will qualify as if such opinion were addressed to Underwriters.a tax-free reorganization under the provisions of Section 368(a)(1)(A) of the Code;
(es) The Manager shareholders of Patron Holdings shall have approved the Patron Holdings Merger and Parent and Patron Holdings shall have effected the Patron Holdings Merger;
(t) Parent shall have consummated one or more additional rounds of financing and shall have received on at least $10,000,000 in connection therewith in the Closing Date form of equity or convertible debt; and
(u) The Company shall have received an opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company)to Parent, dated the Closing Date, to substantially in the effect set forth in paragraphs (ii), (iii) and (iv) [and (vii) and (viii)](5) in form attached hereto as 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.Q.
Appears in 1 contract
Samples: Supplemental Agreement (Combined Professional Services Inc)
Conditions to Closing. The several obligations of the Underwriters hereunder are subject to the following 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 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.
(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 contained in this Agreement are true and correct as of the Closing Date and that the Trust and the Company has have complied with all of the agreements and satisfied all of the obligations on its their part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to for the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Counsel--Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to for the Company, and Xxxxxxxx, Xxxxxx & Finger, Delaware counsel for the Trust, each dated the Closing Date, to the effect set forth in Exhibits A, B B, C and CD, respectively. In giving such opinion, (i) Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California and the federal law of the United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxxxxx, Xxxxx & XxxxxxxXxxxxxx and Xxxxxxxx, and Xxxxxx & Finger, (ii) 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 or opinions of Piper & MarburyMarbury 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (ii), (iiii) and (iv) [and (vii) and (viii)](5ii) in Exhibit A and A, paragraphs (i) through (iv) and (vi) through (viii) in Exhibit C. C and paragraphs (i) through (v) in Exhibit D. 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 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 Trustees, containing statements and information substantially in the form of Appendix E hereto.
(h) The Preferred Securities of the Trust shall 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 securities of the Company or of any other SunAmerica Capital Trust that is (x) organized in substantially the form of, and for substantially the same purpose as, the Trust and (y) whose common equity capital is wholly-owned by the Company 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 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 5 4 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersSecurities.
Appears in 1 contract
Samples: Preferred Stock Underwriting Agreement (Sunamerica Capital Trust Iv)
Conditions to Closing. The several 5.1 Conditions to Investors' Obligations at the Closing. Each Investor's obligations to effect the Closing, including without limitation its obligation to purchase a Debenture and Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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 and the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 Closing Date 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 has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement and in the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.Closing;
(d) The Manager shall have received on 5.1.3 the Closing Date opinions shall occur on a date that is not later than December 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 Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxcertifying that the conditions specified in this Section 5.1 have been fulfilled as of the Closing, Esq., Vice President it being understood that such Investor may rely on such certificate as though it were a representation and General Counsel-- Corporate Affairs warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in the form attached hereto as Exhibit F hereto;
5.1.6 the Company shall have delivered to such Investor duly executed certificates representing the Debenture and substance satisfactory the Warrant being purchased by such Investor;
5.1.7 the Company shall have executed and delivered to the ManagerInvestor the Registration Rights Agreement;
5.1.8 the Company shall have delivered to such Investor a certificate, from signed by the Secretary or an Assistant Secretary of the Company's independent public accountants, containing statements attaching (i) the Certificate of Incorporation and information By-Laws of the type ordinarily included in accountants' "comfort letters" Company, and (ii) resolutions passed by its Board of Directors, or a duly authorized committee thereof, to underwriters 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 a representation and warranty of the 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 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 and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations Disclosure Documents;
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 percent (100%) of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date aggregate number of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance shares of Common Stock issuable upon conversion of all of the Additional Securities.](6) _______________ (6) Include if a green shoe is Debentures and exercise of all of the Warrants to be offered issued at the Closing (such number to Underwritersbe determined without regard to any restriction on such conversion or exercise); and
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 and by the other Transaction Documents.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are subject to 4.1 Closing shall be conditional on the following conditionsConditions Precedent having been fulfilled or waived on or before Closing in accordance with this Agreement:
(a) No stop order suspending unconditional clearance being received from the effectiveness Antimonopoly Committee of Ukraine, the governmental agency of the Registration Statement is Ukraine responsible for the control of economic concentrations and the granting of approvals for acquisition of control in effectUkrainian businesses pursuant to the law of the Ukraine “On the Protection of Economic Competition”, and no proceedings for such purpose are pending before or threatened of the transaction contemplated by the Commission.this Agreement;
(b) Subsequent to the execution and delivery Seller shall have presented originals or notarised copies 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, executed share purchase agreement in the condition, financial or otherwise, or in Agreed Form and any related agreements between the earnings, business or operations, Seller and the Designated Shareholders for the purchase and transfer of the Company and its subsidiariesfull 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, taken subject only to Closing in compliance with clause 2.2(c) above (the Designated Shareholders SPA), as a whole, from that set forth in well as copies of the Prospectus.corresponding share certificates;
(c) The Manager the Seller shall have received on the Closing Date a certificate, dated the Closing Date and signed by presented an executive officer original or notarised copy of the executed share purchase agreement in the Agreed Form between the Seller and 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 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 effect Vodafone Contract, confirming the ability of Memorex Turkey to sell capacity to third parties in the form substantially set forth out in clause 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) above 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 effect that Purchaser , and (c) waives its right to claim for any damages or payments against Memorex Turkey pursuant to the representations and warranties Vodafone Contract resulting out of or in connection with any delays in the timetable (including milestones) for the construction of the Company contained in network as required by the Vodafone Contract until the date of this Agreement are true (the Vodafone Waiver);
(f) the Seller shall have provided the Purchaser with an amendment to the option agreement between and correct as the Company dated 20 January 2006, in a form reasonably acceptable to the Purchaser, and clarifying the subject and price of the Closing Date option, being the shares corresponding to 5 % of the entire share capital of Memorex Turkey held by as set out in Schedule 8 and that the price being the nominal value of the shares;
(g) the Non-Compete Agreement in the Agreed Form shall have been signed by the Company has and Xx. Xxxxxx Xxxxxxxxxx and shall remain in full force and effect;
(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 shall have occurred in respect of the agreements Target Companies between the Management Accounts Date and satisfied all 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 obligations parties thereto without any liability whatsoever to any Target Company. 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 appropriate notification to the Antimonopoly Committee of Ukraine within four (4) 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 Purchaser shall:
(a) promptly notify the Seller (and provide copies or, in the case of 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 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 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 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 part 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 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 be performed or satisfied fulfilled as of Closing, is the Unconditional Date.
4.8 If the Unconditional Date has not occurred on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Drop Dead Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws this Agreement shall automatically terminate (other than the laws Surviving Provisions). In such event, 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 rights and liabilities which have accrued before termination or under any of the State Surviving Provisions. However, should the Unconditional Date not have occurred as a result of California (i) the gross negligence or wilful misconduct of either Party, the defaulting Party shall indemnify the other Party against all its accrued costs and expenses (including advisory and legal fees) incurred in connection with the federal law transaction contemplated herein, or (ii) the Seller not having provided the Purchaser with written confirmation, in the form set out in Schedule 13, with respect to any of the United States of AmericaMaterial Consent Contracts, 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 Seller shall be dated the Closing Date and in form and substance satisfactory pay to the Manager, and shall expressly permit Purchaser liquidated damages in the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
amount of EUR 1,500,000 (eone million five hundred thousand Euros) The Manager shall have 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 (ii), or (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in Exhibit C. In giving such opinionthe Seller not having delivered the Vodafone Amendment and/or the Vodafone Waiver, 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 Seller shall pay to the Manager, so long as each such opinion shall be dated Purchaser liquidated damages in 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. _______________ amount of EUR 1,500,000 (5) References to be included if the Offered Securities are convertibleone million five hundred thousand Euros).
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Share Purchase Agreement (Hungarian Telephone & Cable Corp)
Conditions to Closing. The several 5.1 Conditions to Each Purchaser's Obligations at Closing. Each ----------------------------------------------------- Purchaser's obligations at the Closing, including without limitation his or its obligation to purchase the Notes and Shares, are conditioned upon the fulfillment (or waiver by such Purchaser) of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct in all material respects as of the Closing Date and that such date as if made on such date;
5.1.2 the Company has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing Closing;
5.1.3 the Company and delivering such certificate may rely upon each of the best of his knowledge as to proceedings threatened.
(d) The Manager other Purchasers shall have received on executed and delivered the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs applicable Transaction Documents;
5.1.4 except for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws effects of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Manager, from the Company's independent public accountantscontinued use of cash in the ordinary course of business, containing statements and information there shall have been no material adverse changes in the Company's consolidated business or financial condition since the date of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Company's most recent financial statements delivered to the financial statements Purchasers;
5.1.5 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 certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations sale of the Underwriters to purchase Additional Securities hereunder are subject to delivery to or any of the Manager on the Option Closing Date of such opinions, certificates and documents other transactions contemplated by this Section 5 as such Manager shall reasonably request relating Agreement or seeking to obtain damages from either party hereto in connection with the issuance purchase and sale of the Additional Securities.](6) _______________ (6) Include if a green shoe is to Securities or any of the other transactions contemplated by this Agreement; and
5.1.6 there shall be offered to Underwritersno statute, rule, regulation, executive order, decree, temporary restraining order, preliminary injunction, permanent injunction or other order, enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition preventing the purchase and sale of the Securities in effect.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Healthcentral Com)
Conditions to Closing. The several obligations obligation of each Purchaser to purchase and pay for the Underwriters hereunder are Shares to be delivered to it at the Closing shall be subject to the satisfaction of the following conditionsconditions as of the Closing Date:
(aA) No stop order suspending Concurrent with the effectiveness Closing, the Company, the Purchaser and the required number of other signatories to the Registration Statement is Third Amended and Restated Investors Agreement shall have entered into the Second Amendment to the Third Amended and Restated Investors Agreement in effect, and no proceedings for such purpose are pending before or threatened by the Commission.form attached hereto as Exhibit C;
(bB) Subsequent to Each Purchaser shall have received from Holland & Hart XXX, counsel for the execution and delivery Company, an opinion in substantially the form attached hereto as Exhibit D, dated as of the Underwriting Agreement and prior to the Closing Date;
(C) The Company's stockholders shall have approved the Third Amended and Restated Certificate of Incorporation, there a copy of which is included in Exhibit B attached hereto (the "Certificate of Incorporation") and shall not have occurred waived any material adverse changepreemptive 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, or any development involving a prospective material adverse changeas amended (the "HSR Act"), with respect to El Paso's acquisition of Shares in the condition, financial Closing shall have expired 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.otherwise been terminated;
(cF) The Manager Company shall have received on provide a secretary's or officer's certificate regarding (i) the Closing Date a certificate, dated the Closing Date and signed by an executive officer accuracy of the Company, to the effect set forth in clause (b) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that Date, (ii) the Company has complied with satisfaction or fulfillment of all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel conditions to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the CompanyClosing, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 certification 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.all resolutions
Appears in 1 contract
Samples: Series C Preferred Stock Purchase Agreement (Velocom Inc)
Conditions to Closing. The several obligations of the Underwriters hereunder are to purchase and pay for the Debt Securities will be subject to the 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 further conditions:
(a) No 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 is 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 effectthe 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:
(i) the representations and warranties of the Company in this Agreement 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 with all the agreements and 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 most recent financial statements included in the Registration Statement (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or 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 such that purpose have been instituted or are pending before or threatened are contemplated by the Commission.
(bi) Subsequent Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements 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 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 execution and offering or the delivery of the Underwriting Agreement Debt Securities as contemplated by the Prospectus.
(d) The Underwriters shall have 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 opinions involve factual matters, such counsel may rely, 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 such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Underwriters. Insofar as such opinions involve factual matters, such 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 rated at least "B2" by Xxxxx'x Investor Service, Inc. ("Moody's") and "BB" by Standard & Poor's Rating Services, a division of McGraw Hill, Inc. ("S&P"), and the Company shall have delivered to the 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 material adverse changedowngrading, nor shall any notice have been given on or after the date hereof of any development involving intended or potential downgrading or of any review for a prospective material adverse possible change that does not indicate the direction of the possible change, in the condition, financial rating accorded any of the Company's securities by any "nationally recognized statistical rating organization" as such term is defined by the Commission for the purposes of Rule 436(g)(2) under the Securities Act; no public announcement shall have been made that any such organization has under surveillance or otherwise, review their ratings of the Debt Securities or in the earnings, business or operations, any other debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and its subsidiariesno implication of a possible downgrading, taken as a wholeof such rating), from that set forth and if, in any such case, the effect thereof in the Prospectusreasonable judgment of the Underwriters makes it impracticable or inadvisable to proceed with the purchase of the Debt Securities.
(cg) The Manager At the time of the execution of this Agreement, the Underwriters 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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Datesuch date, in form and substance reasonably satisfactory to the Managerthem, from Deloitte & Touche LLP, independent public accountants of 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, including the financial information contained in or incorporated by reference into 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. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Underwriting Agreement (Great Atlantic & Pacific Tea Co Inc)
Conditions to Closing. The several obligations of City’s obligation to proceed with the Underwriters hereunder are Closing is subject to the following conditions:
(a) No stop order suspending the effectiveness Applicant’s fulfillment of each of the Registration Statement is in effect, and no proceedings for such purpose are pending before following conditions at 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.Closing:
(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 a. All representations and warranties of the Company 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 form of the attached “Exhibit B”.
(2) The Assistance shall be 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 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 have performed its obligations, agreements, and covenants contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on by them, on, or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedClosing.
(d) The Manager e. There shall have received on been no material adverse change in the operation or financial status of the Applicant and the Closing Date opinions of Piper & Marbury, Maryland counsel to shall constitute the Company, Xxxxx X. Xxxxxx, EsqApplicant’s representations that there has been no such material adverse change., Vice President and General Counsel-- Corporate Affairs for
f. In requesting the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws disbursement of the State of California Assistance, the Applicant is considered to have represented that the above conditions have been satisfied 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 are continuing to be included if the Offered Securities are convertiblesatisfied.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several obligations closing of this Loan is subject to Xxxxxx’s receipt of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement is in effectfollowing, 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.
(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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 ManagerLender it its sole discretion, and which shall expressly permit the Underwriters to rely thereon have been duly executed, certified and/or recorded as if such opinion were addressed to Underwriters.appropriate:
(ea) The Manager shall have 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 (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 Fully executed Loan Documents in form and substance satisfactory to Lender.
(b) An incumbency certificate including (1) the Managerarticles of incorporation of Borrower, together with all amendments thereto, certified by the Secretary of State of the State of California as of a recent date satisfactory to Lender, (2) the bylaws of Borrower certified by an officer of Borrower as being a true and complete copy of the bylaws or Borrower, together with all amendments thereto, as in effect on the date of such certificate and on the date the resolutions set forth in paragraph (d) below will be adopted, (3) evidence that the Borrower is exempt from all federal, and shall expressly permit if applicable, state taxes (other than real property taxes), (4) a certificate of the Underwriters Secretary of State of the State of California dated as of a date not more than 30 days prior to rely thereon Closing certifying as if such opinion were addressed to Underwriters. _______________ the good standing of Borrower, and evidencing its ability to conduct business from all applicable jurisdictions, (5) References a resolution as described below at subparagraph (c), and (6) specimen signatures of those officers of Borrower authorized to be included if execute the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing DateLoan Documents, in form and substance satisfactory to Lender in its sole discretion (together, the Manager, from the Company's independent public accountants, containing statements “Borrower Organizational Documents”).
(c) True and information correct copies of the type ordinarily included Resolutions of the Board of Directors of Borrower in accountants' "comfort letters" form and substance satisfactory to underwriters Lender, certified by the Board of Directors of Borrower, as of a recent date satisfactory to Xxxxxx, evidencing Xxxxxxxx’s authorization of the execution, delivery and performance of the Loan Documents and further authorizing Borrower to incur the Loan and indicating designated signers.
(d) Plans prepared by Xxxxxxxx’s architect and approved by Xxxxxx for the construction of the Project.
(e) Permits issued by the City for the construction of the Project.
(f) A construction contract between Borrower and the Contractor approved by Xxxxxx for the construction of the Project with respect a not-to-exceed price of $15,000,000 (the “Construction Contract”), with a statement executed by Contractor that the Construction Contract is in full force and effect and that Borrower is not in default under the Construction Contract. The Construction Contract must comply with the terms and conditions of the VHHP Agreement.
(g) Evidence of financing to show that Borrower has funds sufficient, when combined with the proceeds of the Loan, to construct the Project.
(h) If required by Xxxxxx, the results of UCC, tax lien, litigation, judgement and bankruptcy searches as to Borrower or in such jurisdictions as Lender shall reasonably require.
(i) A paid Preliminary Title Report and Title Policy in the amount of the Note, issued by the Title Company which shall insure the Instrument to be a valid first lien on Borrower’s fee estate in the Property free and clear of all defects and encumbrances except those previously received and approved by Xxxxxx. The costs of the Preliminary Title Report, the Title Policy, recording fees and taxes shall be paid directly to the financial statements Title Company by Xxxxxxxx.
(j) Certificates of insurance, evidencing that Borrower has obtained and certain financial information contained is maintaining insurance in the amount and form required to be maintained under this Agreement, as set forth at Exhibit B hereto.
(k) Xxxxxx’s receipt and written approval of a Phase 1 environmental report described and dated as set forth in Section 4(h).
(l) Xxxxxx’s receipt and written approval of the certificates, endorsements and other evidence of insurance as required under Section 6.
(m) All acts, conditions and things (including, without limitation, the obtaining of any necessary regulatory approvals and the making of any required filings, recordings or incorporated by reference into registrations) required to be done and performed and to have happened precedent to the Prospectus. [The several execution, delivery and performance of the Loan Documents and to constitute the same legal, valid and binding obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of such opinionsBorrower, certificates enforceable against Borrower in accordance with their respective terms, shall have been done and documents contemplated by this Section 5 as such Manager performed and shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritershave happened in due and strict compliance with all applicable laws.
Appears in 1 contract
Samples: Loan and Security Agreement
Conditions to Closing. The several obligations obligation of the Underwriters hereunder are Investors to purchase and pay for the Series A Preferred to be purchased by the Investors on the Closing Date is subject to the satisfaction, at or prior to the Closing, of each of the following conditions:
(a) No stop order suspending the effectiveness Company shall have duly authorized and filed the Certificate of Designation (the "CERTIFICATE") with the Secretary of State of the Registration Statement is State of Nevada, substantially in effect, and no proceedings for such purpose are pending before or threatened by the Commission.form attached hereto as EXHIBIT A;
(b) Subsequent to the execution Company shall have duly authorized and delivery filed the Amended and Restated Articles of Incorporation (the "ARTICLES OF INCORPORATION") with the Secretary of State of the Underwriting Agreement and prior to the Closing DateState of Nevada, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, substantially in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken form attached hereto as a whole, from that set forth in the Prospectus.EXHIBIT B;
(c) The Manager the Company shall have received on amended and restated its Bylaws, substantially in 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 contained in this Agreement are true and correct form attached hereto as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.EXHIBIT C;
(d) The Manager this Agreement, the Articles of Incorporation, and the Certificate shall have received on been approved by the Closing Date opinions stockholders of Piper & Marbury, Maryland counsel to the Company;
(e) each of Frank A. Lodzinski, Xxxxx X. XxxxxxJerry M. Crews, Esq.Francis Mury and Peggy Simpson shaxx xxxx xxxxxxx xxto xx Xxxxxxxxxx Axxxxxxxx, Vice President and General Counsel-- Corporate Affairs xxbstanxxxxxx xx xxx form attached hereto as EXHIBIT D;
(f) Bond & Taylor, L.L.P., counsel for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an opinion of special Nevada counsel for the Underwriters (Coxxxxx shall have delivered to the selection of whom shall be approved by the Company)Investors legal opinions, dated the Closing Date, to the effect set forth in 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the ManagerInvestors;
(g) the Company and each of the directors who are designees of the Investors shall have entered into Indemnification Agreements (the "INDEMNIFICATION AGREEMENTS"), substantially in the form attached hereto as EXHIBIT E;
(h) the Company and the Investors shall have entered into a Registration Rights Agreement (the "REGISTRATION RIGHTS AGREEMENT"), substantially in the form attached hereto as EXHIBIT F;
(i) each of the Investors shall purchase at the Closing pursuant to this Agreement the number of shares of Series A Preferred set forth opposite its name on SCHEDULE 1.1;
(j) at the Closing, the net proceeds from the sale of the Series A Preferred shall be applied to the repayment of outstanding indebtedness of the Company, including the redemption of the $10,000,000 convertible debenture held by RIMCO; provided, however, that if the Company is unable to redeem the RIMCO debenture at the Closing without incurring a prepayment penalty, at the request of a Requisite Interest, $10,000,000 of the net proceeds shall be placed into an escrow account at the Closing pursuant to an escrow agreement, satisfactory in form and substance to a Requisite Interest, providing for the application of such funds to the redemption of the RIMCO debenture;
(k) all representations and warranties of the Company to the Investors shall be true, correct and complete as of the Closing Date;
(l) the Company shall have complied with all agreements, undertakings and obligations that are required to be performed or complied with by the Company at or prior to the Closing Date;
(m) there shall have been no material adverse change in the business, assets, financial condition, operation and results of operations of the Company since September 30, 1999; and
(n) the Company shall have delivered to the Investors:
(i) the Articles of Incorporation of the Company and all amendments thereto, certified by the Secretary of State of Nevada;
(ii) (A) copies of the resolutions of the Company's independent public accountants, containing statements Board of Directors authorizing and information approving this Agreement and all of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to transactions and agreements contemplated hereby and thereby, (B) the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations Bylaws of the Underwriters to purchase Additional Securities hereunder are subject to delivery to Company and (C) the Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance names of the Additional Securities.](6) _______________ (6) Include if a green shoe is 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 Secretary of the Company to be offered true, correct, complete and in full force and effect and unmodified as of the Closing Date;
(iii) a certificate of existence for the Company from the Secretary of State of Nevada;
(iv) a certificate of account status for the Company from the Comptroller of the State of Nevada;
(v) certificates from each state where the Company is required to Underwritersbe qualified as a foreign corporation showing such qualification, dated as of a date within ten (10) days of the Closing Date; and
(vi) such other documents, instruments, and certificates as the Investors may reasonably request.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Texoil Inc /Nv/)
Conditions to Closing. The several obligations sale of the Underwriters hereunder are Units at any Time of Delivery shall be subject to the condition tat all representations and warranties and other statements of the Corporation herein are, at and as such Time of Delivery, true and correct, the condition that the Corporation shall have performed all of their obligations hereunder to be performed at or prior each Time of Delivery and the following additional conditions:
(a) No stop order suspending 8.1 Xxxxxx XxXxxx LLP, counsel for the effectiveness of the Registration Statement is in effectCorporation, and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Subsequent shall have furnished to the execution Agent their written opinion, dated as of such Time of Delivery, in form and delivery of the Underwriting Agreement and prior substance satisfactory 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 Agent and its subsidiariescounsel, taken acting reasonably, as a whole, from that set forth in the Prospectus.
(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 matters described in clause (b) above and to the effect that the representations and warranties schedule “D” attached hereto. Opinions of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied local counsel with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as respect to matters governed by laws other than the laws of the State of California and the federal law of the United States of America, on an opinion those of: Alberta 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 Canada shall also be dated the Closing Date and in form and substance satisfactory delivered to the Manager, Agent and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (ii), (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in Exhibit C. Agent’s counsel. In giving rendering such opinion, such counsel may rely, as to matters governed by laws other than the federal law extent appropriate in the circumstances, on certificates of officers of the United States Corporation and of Americathe auditors of the Corporation, on an opinion or opinions signed copies of local counsel satisfactory all of which shall be delivered to the Manager, so long as each such opinion shall be dated the Closing Date and Agent in form and substance satisfactory to the ManagerAgent’s counsel, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters. _______________ (5) References to be included if the Offered Securities are convertibleacting reasonably.
(f) The Manager 8.2 At any Time of Delivery, PricewaterhouseCoopers LLP, Chartered Accountants shall have received on the Closing Date furnished to Ire Agent a letter, dated the Closing Datesuch Time of Delivery, in form and substance satisfactory to the ManagerAgent, from acting reasonably, which shall confirm in all material respects as of a date not more than two (2) full Business Days prior to such Time of Delivery, the Company's independent public accountants, containing statements and information conclusions awl findings of the type ordinarily included in accountants' "comfort letters" to underwriters such firm with respect to the financial statements information and certain financial information contained other matters covered by its letter referred to in or incorporated Section 6.2.2 and any similar letters by reference into the Prospectus. [such firm pursuant to Section 6.4 and 6.5.
8.3 The several obligations Common Shares forming part of the Underwriters Units, the Series B Warrants, the Common Shares underlying the Series B Warrants and the Agent’s Warrants shall have been conditionally approved for listing on the Exchange no later than on the close of business on the last Business Day preceding such Time of Delivery
8.4 The Corporation shall have furnished or caused to purchase Additional Securities hereunder are subject to delivery be furnished to the Manager on Agent at such Time of Delivery certificates, in form and substances satisfactory tote Agent and their counsel, acting reasonably, of officers of the Option Closing Date Corporation satisfactory to the Agent as to the accuracy of the representations and warranties of the Corporation herein at and as of such opinionsTime of Delivery, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance performance by the Corporation of all of its obligations hereunder to he performed at or prior to such Time of Delivery and also as to such other matters as the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersAgent may reasonably request.
Appears in 1 contract
Conditions to Closing. Conditions to Investor's Obligations at the Closing . The several Investor's obligations to effect the Closing, including, without limitation, its obligation to purchase Shares and Warrant at the Closing, are conditioned upon the fulfillment (or waiver by the Investor in its sole and absolute discretion) of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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 and the Company and shall use its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer commercially reasonable efforts to cause each of the Company, such conditions to the effect set forth in clause (b) above and to the effect that be satisfied: the representations and warranties of the Company contained set forth in this Agreement are and in the other Transaction Documents shall be true and correct as of such date as if made on such date (except to the Closing Date extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct as of that particular date); the Company has shall have complied with or performed all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon Closing; the best of his knowledge as to proceedings threatened.
(d) The Manager Company shall have received on delivered to the Closing Date opinions Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxcertifying that the conditions specified in Sections 5.1(a), Esq.(b), Vice President (h), (i), (k) and General Counsel-- Corporate Affairs for (l) have been fulfilled as of the Closing, it being understood that the Investor may rely on such certificate as though it were a representation and warranty of the Company made herein; the Company shall have delivered to the Investor duly executed certificates representing the Shares and the Warrant being purchased by the Investor; the Company shall have executed and delivered to the Investor the Registration Rights Agreement; 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 to the Investor a certificate, signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the charter and bylaws of the Company, and Xxxxx Xxxx & Xxxxxxxx(ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, special counsel 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 Investor may rely on such certificate as a representation and warranty of the Company made herein; the Company shall have authorized and reserved for issuance the aggregate number of shares of Common Stock issuable upon exercise of the 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 effect that restrains or prohibits the consummation of the transactions contemplated hereby and by the other Transaction Documents; the Closing Date shall occur on a date that is not later than July 3, 2009; 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; and the Common Stock shall be listed on the Nasdaq Global Market. Conditions to Company's Obligations at the Closing . 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 Closing Date: the representations and warranties of the Investor set forth in this Agreement and in the other Transaction Documents to which it is a party shall be true and correct as of such date as if made on such date (except to the extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct as of that date); 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 the Investor on or before the Closing; there shall be no injunction, restraining order or decree of any nature of any court or Governmental 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; the Investor shall have executed each Transaction Document to which it is a party and shall have delivered the same to the Company, dated ; and the Investor shall have tendered to the Company the Purchase Price for the Shares and the Warrant being purchased by it at the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws wire transfer of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwritersimmediately available funds.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are subject to the following 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 On 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.
(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, condition precedent to the effect set forth in clause (b) above and to the effect that Buyer's obligations hereunder, all of the representations and warranties of the Company contained Seller made herein shall be true and 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 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 June 10, 1999 by its secretary or assistant secretary authorizing the execution, delivery and performance of this Agreement are true by the Seller and correct approving the transactions contemplated hereby;
(b) The Certificate of Incorporation of the Seller, certified as of a date reasonably near the Closing Date and that by the Company has complied with all Secretary of State or other similar official of the agreements and satisfied all Seller's jurisdiction of incorporation;
(c) A good standing certificate for the Seller issued by the Secretary of State or other similar official of the obligations on its part 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 performed or satisfied on or before dated a date reasonably near the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.;
(d) The Manager shall have received 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 the officers and other employees authorized to perform, this Agreement by the Seller and (ii) a copy of the Seller's By-laws;
(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 appropriate jurisdictions; or other similar instruments or documents as may be necessary or, in the opinion of the Buyer, desirable under the UCC of all appropriate jurisdictions to evidence or perfect the Buyer's ownership interests in all of the 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 Seller (except the Lien of a Trust under the relevant Scheduled Pooling and Servicing Agreement);
(g) Certified copies of lien search reports dated a date reasonably near the Closing Date opinions listing all effective financing statements that name the Seller (under its present name and 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 paragraph (e) above, together with copies of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws financing statements (none of which shall cover any of the State of California Historical Advances, the Scheduled Pooling and the federal law of the United States of America, on an Servicing Agreements or any related rights);
(h) A favorable 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company)Seller, dated the Closing Date, date hereof and addressed to the effect set forth in paragraphs (ii)Buyer relating to corporate matters, (iii) legality and (iv) [validity of this Agreement, 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 a favorable opinion or opinions of local O'Melveny & Myerx XXX, 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letterSeller, dated the Closing Date, in form date hereof and substance satisfactory addressed to the Manager, from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request Buyer relating to the issuance characterization of the Additional Securities.](6transfer of the Historical Advances in a bankruptcy case as an absolute transfer, enforceability of this Agreement and of the Scheduled Supplements, the perfection of the Buyer's ownership interests in the Historical Advances and such other matters as the Buyer may reasonably request;
(i) _______________ An officer's certificate dated the date hereof in a form reasonably acceptable to the Buyer executed by a Responsible Officer of the Seller to the effect that (6i) Include if a green shoe is to be offered to Underwriters.all
Appears in 1 contract
Samples: Historical Advance Purchase Agreement (Aames Financial Corp/De)
Conditions to Closing. The several obligations of the Underwriters hereunder are subject SECTION 5.1. Conditions to the following conditionsCompany's Obligation to Sell the Shares and the Warrants. The Purchaser understands that the Company's obligation to issue and sell the Shares and the Warrants is conditioned upon:
(a) No stop order suspending Delivery by the effectiveness Purchaser to the Company of a duly executed copy of this Agreement and the Registration Statement is Rights Agreement and the Purchase Price, in effectcash, and no proceedings for such purpose are pending before or threatened by the Commission.in full;
(b) Subsequent to the execution and delivery The accuracy as 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, date hereof of the Company representations and its subsidiarieswarranties of the Purchaser contained in this Agreement, taken as a whole, from that set forth in and performance by the Prospectus.Purchaser of all covenants and agreements of the Purchaser required to be performed by it on or before the date hereof; and
(c) The Manager shall have received continued listing of the Common Stock on the Closing Date a certificate, dated Nasdaq National Market through the Closing Date and signed by an executive officer of the Company, date hereof.
SECTION 5.2. Conditions to the effect set forth in clause Purchaser's Obligation to Purchase the Shares and the Warrants. The Company understands that the Purchaser's obligation to purchase the Shares and the Warrants is conditioned upon:
(a) Delivery by the Company to the Purchaser of a duly executed copy of this Agreement, the Warrant Agreement and the Registration Rights Agreement;
(b) above and Delivery of certificates evidencing the Shares to the effect that Purchaser;
(c) The accuracy as of the date hereof of the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that performance by the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing date hereof of all covenants and delivering such certificate may rely upon agreements of the best of his knowledge as Company required to proceedings threatened.be performed by it on or before the date hereof;
(d) The Manager continued listing of the Common Stock on the Nasdaq National Market through the date hereof;
(e) The receipt by the Company of gross proceeds of at least $2,000,000.00 from the sale of its equity securities (other than the Shares and Warrants pursuant to this Agreement) after October 1, 2001 and prior to or simultaneously with the Closing under this Agreement. Such sale shall be pursuant to a subscription agreement, warrant agreement and registration rights agreement in the forms attached to a certificate that the Company shall have received on delivered to the Closing Date opinions Purchaser certifying as to the satisfaction of Piper the conditions set forth in this Section 5.2(e); and
(f) The receipt by the Purchaser of an opinion of Messrs. Kramer Levin Naftalis & MarburyFrankel LLP, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel in forx xxx xxxxxxxxx xxxxxnabxx xxxxsfactory to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersPurchaser.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are Purchaser and OTI and the obligations of the Sellers to consummate the transactions set forth herein is subject to the fulfillment, at the latest at the Closing Date, of each of the following conditions:conditions (any or all of which may be waived by the Purchaser, OTI or the Sellers if provided for his benefit):
(a) No stop order suspending the effectiveness of Company and DXP have entered into an agreement under which the Registration Statement is in effect, Business was transferred to the Company which has been duly authorised and no proceedings for such purpose are pending before or threatened executed by the Commission.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) Subsequent to the execution representations and delivery warranties of the Underwriting DXP as provided for in the transfer of business agreement were true and correct when made and shall be true and correct in all material respects at the Closing as though made again at the Closing Date;
(c) the Company and the Sellers 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;
(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 prior to the Closing Date, there shall not have occurred any been no material adverse change, or any development involving a prospective material adverse change, change in the condition, financial or otherwise, or in the earnings, business or operations, conditions of the Company Business or clients and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer prospects of the Company, Business; and any event or material change has been notified to the effect set forth in clause (b) above Purchaser or OTI and to any decision which may affect the effect that Business has been taken with the representations and warranties prior approval of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed Purchaser or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.OTI;
(f) The Manager shall have received all corporate authorisations on the Closing Date part of the Purchaser or OTI necessary for the execution of this Agreement have been granted;
(g) DXP shall deliver to the Company a lettercertificate under which DXP shall certify the absence of claims from auditors within the legal time period of Article L.141-14 and seq. of the Commercial Code and in case of claims, dated shall justify the Closing Datepayment of the corresponding claim whatever its amount is, in form and substance satisfactory to order that the Manager, from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to Company may not be offered to Underwriterstroubled.
Appears in 1 contract
Samples: Share Transfer Agreement (On Track Innovations LTD)
Conditions to Closing. The several 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 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 Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 Closing Date 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 has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement and in the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon Closing;
5.1.3 the best of his knowledge as to proceedings threatened.
(d) The Manager Company shall have received on 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 opinions shall occur on a date that is not later than June 10, 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 Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxcertifying that the conditions specified in this Section 5.1 have been fulfilled as of the Closing, Esq.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, Vice President signed by the Secretary or an Assistant Secretary of the Company, attaching (i) the Certificate of Incorporation and General Counsel-- Corporate Affairs 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, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in substantially the form set forth on Exhibit 5.1.7 hereto;
5.1.8 the Company shall have delivered to such Investor the duly executed Note and substance satisfactory duly executed certificates representing the Preferred Shares Warrant and VeriChip Warrant being purchased by such Investor;
5.1.9 the Company shall have executed and delivered to such Investor the ManagerRegistration 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, from except for sales made pursuant to a 10b-5(1) plan described in Section 4.2(h);
5.1.11 there shall have occurred no material adverse change in the Company's independent public accountants, containing statements and information ’s consolidated business or financial condition since the date of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the Company’s most recent financial statements and certain financial information contained in the Disclosure Documents;
5.1.12 the Common Stock shall be quoted and actively traded on the Nasdaq Stock Market; and
5.1.13 there shall be no injunction, restraining order or incorporated by reference into decree of any nature of any court or Government Authority of competent jurisdiction that is in effect that restrains or prohibits the Prospectus. [The several obligations consummation of the Underwriters to purchase Additional Securities hereunder are subject to delivery to transactions contemplated hereby or by the Manager on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersother Transaction Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Applied Digital Solutions Inc)
Conditions to Closing. The several obligations of the Underwriters Parties hereunder to complete the Transaction are subject conditioned on the occurrence of the following, without limitation:
10.1 The transactions contemplated hereby shall have been approved by the Board of Directors of Buyer.
10.2 Any required consent to the following conditions:Transaction shall have been obtained.
(a) No stop order suspending 10.3 All encumbrances relating to the effectiveness assets of the Registration Statement is in effectCompany shall be satisfied, terminated, and no proceedings for such purpose are pending before or threatened discharged by the Commission.
(b) Subsequent to the execution and delivery of the Underwriting Agreement and Company on or prior to the Closing Date, there and evidence reasonably satisfactory to Buyer and its counsel of the satisfaction, termination, and discharge shall not be delivered to Buyer at or prior to the Closing.
10.4 All indebtedness of the Company shall have occurred been repaid-in-full.
10.5 Buyer shall have arranged to its 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, in Buyer’s sole discretion, its due diligence review of the Company.
10.7 The Company shall have delivered audited financials to Buyer in accordance with generally accepted accounting principles in the United States (“GAAP”).
10.8 The absence of any material adverse change, or any development involving a prospective material adverse change, change in the conditionbusiness, assets, condition (financial or otherwise), or in the earnings, business or results of operations, cash flows or properties of the 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 that set forth competing with the Company in the Prospectus.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed market areas now served 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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part or contemplated to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an opinion of special counsel for the Underwriters (the selection of whom shall be approved served by the Company), dated the Closing Date, to the effect set forth in 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 .
10.11 Anything else reasonably contemplated 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 Buyer to be included if delivered in order to consummate the Offered Securities are convertibleTransaction.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. 1. The several obligations obligation of the Underwriters hereunder are Investor to purchase and pay for the Shares being purchased by it on the Closing Date is, at its option, subject to the satisfaction, on or before such date, of the following 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.
(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 contained in this Agreement are Section B hereof shall be true and correct on and as of the Closing Date with the same effect as though such representations and that warranties had been made on and as of such date, and the Company has complied with all of shall have certified to such effect to the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.Investor;
(db) The Manager Investor shall have received on the Closing Date opinions of Piper from Shearman & MarburySterling, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & XxxxxxxxXxxxxxx Xxxxxxxxxxx, special counsel to 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 effect set forth in Exhibits 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 (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, respectively. In giving such opinion, Xx. Xxxxxx may rely, as and (D) a good standing certificate with respect to matters governed by laws other than the laws Company from the Secretary of State (or similar official) of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.Washington;
(e) The Manager 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 term is defined in the Registration Rights Agreement) shall have received 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 an opinion is, at its option, subject to the satisfaction, on or before such date, of special counsel for the Underwriters following conditions:
(a) The representations and warranties of the selection of whom Investor contained in Section C hereof shall be approved by true and correct on and as of the Company), dated Closing Date with the same effect as though such representations and warranties had been made on and as of such date; and
(b) On the Closing Date, the Company, the Investor and the holders of at least a majority in interest of the "Registrable Securities" (as such term is defined in the Registration Rights Agreement) shall have entered into Amendment No. 1 to the effect set forth Registration Rights Agreement substantially in paragraphs (ii), (iii) and (iv) [and (vii) and (viii)](5) in the form annexed hereto as 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 included if the Offered Securities are convertibleA-2.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. 5.1 Conditions to Purchaser's Obligations at Closing. The several Purchaser's obligations at the Closing, including without limitation its obligation to purchase the Shares, are conditioned upon the fulfillment (or waiver by the Purchaser) of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct in all material respects as of such date as if made on such 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 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 the Purchaser a certificate, signed by an officer of the Company, certifying that the conditions specified in paragraphs 5.1.1, 5.1.2 and 5.1.7 have been fulfilled as of the Closing;
5.1.4 the Company shall have delivered to the Purchaser a certificate, signed by the Secretary of the Company, attaching a copy of the resolutions of the Board of Directors authorizing the transactions contemplated hereby, and certifying that such resolutions have not been modified or rescinded since the date of their adoption by the Company's Board of Directors;
5.1.5 the Company shall have delivered duly executed certificates representing the Shares being purchased;
5.1.6 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.7 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 audited financial statements contained in the Disclosure Documents;
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, permanent injunction or other order, enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition preventing the purchase and sale of the Shares in effect.
5.1.10 the Purchaser shall have received an opinion of the Company's counsel in form and substance as set forth on Exhibit B.
5.2 Conditions to Company's Obligations at Closing. The Company's obligations at the Closing are conditioned upon the fulfillment (or waiver by the Company) of each of the following events as of the Closing Date Date:
5.2.1 the representations and that warranties of the Company has Purchaser shall be true and correct in all material respects as of such date as if made on such date; and
5.2.2 the Purchaser shall have complied with or performed all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by the Purchaser on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedClosing.
(d) The Manager 5.2.3 there shall have received on be no action or proceeding by or before any Governmental Entity or NASD pending or threatened challenging or seeking to restrain or prohibit the Closing Date opinions purchase and sale of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws any of the State of California and the federal law Shares or any 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of such opinions, certificates and documents transactions contemplated by this Section 5 as such Manager shall reasonably request relating Agreement or seeking to obtain damages from either party hereto in connection with the issuance purchase and sale of the Additional Securities.](6) _______________ (6) Include if a green shoe is to Shares or any of the other transactions contemplated by this Agreement.
5.2.4 there shall be offered to Underwritersno statute, rule, regulation, executive order, decree, temporary restraining order, preliminary injunction, permanent injunction or other order, enacted, entered, promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition preventing the purchase and sale of the Shares in effect.
Appears in 1 contract
Conditions to Closing. The several 5.1 Conditions to Investors' Obligations at the Closing. Each Investor's obligations to effect the Closing, including without limitation its obligation to purchase Shares and 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 Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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 and the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 Closing Date 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 has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement and in the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.Closing;
(d) The Manager shall have received on 5.1.3 the Closing Date opinions shall occur on a date that is not later than March 2, 2005;
5.1.4 the Company shall have delivered to such Investor a certificate, signed by the Chief Executive Officer and Chief Financial Officer of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxcertifying that the conditions specified in this Section 5.1 have been fulfilled as of the Closing, Esq., Vice President it being understood that such Investor may rely on such certificate as though it were a representation and General Counsel-- Corporate Affairs warranty of the Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion of counsel for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in the form attached hereto as Exhibit F hereto;
5.1.6 the Company shall have delivered to such Investor a duly executed certificate representing the Warrant being purchased by such Investor;
5.1.7 the Company shall have executed and substance satisfactory delivered to such Investor the ManagerRegistration Rights Agreement;
5.1.8 the Company shall have delivered to such Investor a certificate, signed by the Secretary or an Assistant 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 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 occurred no material adverse change in the Company's independent public accountants, containing statements and information consolidated business or financial condition since the date of the type ordinarily included Company's most recent financial statements contained in accountants' the Disclosure Documents;
5.1.11 the Company shall have authorized and reserved for issuance upon exercise of the Warrants the aggregate number of shares of Common Stock issuable upon exercise of all of the Warrants to be issued at the Closing (such number to be determined without regard to any restriction on such exercise);
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 and by the other Transaction Documents; and
5.1.13 the Company shall have delivered a letter from Nearshore Petroleum Corporation ("comfort letters" to underwriters with respect Nearshore"), addressed to the financial statements Investors, under which Nearshore agrees, promptly following the Closing, to reserve and certain financial information contained 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 incorporated as any Investor may request, in order to grant, reserve, perfect and protect the Option 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 reference into the Prospectus. [The several obligations Company in its sole and absolute discretion) of each of the Underwriters to purchase Additional Securities hereunder are subject to delivery following events as of the Closing Date:
5.2.1 the representations and warranties of 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 Manager 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 date);
5.2.2 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 Date 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 and by the other Transaction Documents;
5.2.4 such opinions, certificates Investor shall have executed each Transaction Document to which it is a party and documents contemplated by this Section 5 as such Manager shall reasonably request relating have delivered the same to the issuance Company; and
5.2.5 such Investor shall have tendered to the Company the Purchase Price for the Shares and the Warrant being purchased by it at the Closing by wire transfer of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersimmediately available funds.
Appears in 1 contract
Samples: Securities Purchase Agreement (Deep Well Oil & Gas Inc)
Conditions to Closing. The several obligations of the Underwriters hereunder are subject following shall be conditions precedent to the following conditionsClosing Date:
(a) No stop order suspending This Agreement and the effectiveness of the Registration Statement is other Transaction Documents shall have become effective in effect, and no proceedings for such purpose are pending before or threatened by the Commissionaccordance with their respective terms.
(b) Subsequent to the execution and delivery All of the Underwriting Agreement terms, covenants, agreements and prior 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, there Date shall not have occurred any been complied with in all material adverse change, respects or any development involving a prospective material adverse change, in otherwise waived by 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 ProspectusAgent.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer Each of the Company, to the effect set forth in clause (b) above and to the effect that the representations and warranties of each of Bluegreen, the Company contained Seller, the Servicer, the Issuer, the Depositor, the Owner Trustee or the Indenture Trustee, as the case may be, made in this Agreement are 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 time (except 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 an amortization event or other termination event shall have 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 resolutions of the Board of Directors of each of Bluegreen and the Depositor approving this Agreement and the Transaction Documents 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 delivered by it hereunder or thereunder;
(iii) A copy of the bylaws of each of Bluegreen and the Depositor, certified by an officer thereof;
(iv) A certified copy of the charter of each of Bluegreen and the Depositor, a certificate as to the good standing of Bluegreen from the Secretary of State of the State of Massachusetts and a certificate as to the good standing of the Depositor from the Secretary of State of the State of Delaware, in each case dated as of a recent date;
(v) Proper financing statements under the UCC of all jurisdictions that the Company has complied with 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 agreements and satisfied all of Trust Estate previously granted by the obligations on its part to be performed Seller, the Depositor or satisfied the Issuer;
(vii) Completed requests for information, dated on or before the Closing Date. The officer signing and delivering , in all jurisdictions referred to in subsection (vi) above that name the Issuer, the Depositor or Bluegreen as debtor, together with copies of such certificate may rely upon the best of his knowledge as to proceedings threatened.other financing statements;
(dviii) The Manager shall have received on the Closing Date opinions A favorable opinion of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the CompanyBluegreen, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Initial Funding Date, in form and substance satisfactory to the ManagerAgent, from such opinion to permit reliance by the Company's independent public accountantsPurchasers;
(ix) A favorable opinion of counsel to Vacation Trust, containing statements Inc., dated the Initial Funding Date, in form and information 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 type ordinarily included Owner Trustee and special Delaware counsel to the Issuer, dated the Initial Funding Date, in accountants' "comfort letters" form and substance satisfactory to underwriters 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 financial statements Indenture Trustee and certain financial information contained in or incorporated Custodian as the Agent may reasonably request, such opinion to permit reliance by reference into the Prospectus. [The several obligations 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 Underwriters Initial Funding Date regarding certain state timeshare and real estate legal matters related to purchase Additional Securities hereunder are subject to delivery each Initial Approved Opinion Resort and the related Timeshare Loans, in form and substance satisfactory to the Manager on Agent regarding local law matters, such opinion to permit reliance by the Option Closing Date Purchasers;
(xv) A copy of such opinionsthe documentation evidencing the release of all liens attaching to the Timeshare Loans pursuant to previous financings;
(xvi) Executed copies of each of the Transaction Documents; and
(xvii) Such other documents, instruments, certificates and documents opinions as the Agent may reasonably request including those set forth as the closing list delivered to the Seller in connection with this transaction.
(f) No action, suit, proceeding or investigation by or before any Governmental Authority shall have been instituted to restrain or prohibit the consummation by the Agent or the Purchasers of, or to invalidate, the transactions contemplated by this Section 5 as such Manager shall reasonably request relating to Agreement or the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersTransaction Documents in any material respect.
Appears in 1 contract
Conditions to Closing. The several obligations obligation of the Underwriters each Purchaser to purchase Notes hereunder are shall be subject to the receipt by each Purchaser of each Financing Document to be entered into on the Closing Date and to the satisfaction of the following conditionsconditions precedent, each in form and substance reasonably satisfactory to each Purchaser:
(a) No stop order suspending receipt by the effectiveness Purchasers of executed copies of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by the Commission.Financing Documents;
(b) Subsequent 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 execution Issuer;
(d) receipt of payment of all fees, expenses and delivery other amounts due and payable on the Closing Date under each Financing Document; provided that, in accordance with the provisions of the Underwriting 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;
(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 contained in the Financing Documents are true and correct in all material respects (without duplication of any materiality qualifier) as of the Closing Date, both before and after giving effect to the transactions contemplated by the Financing Documents;
(f) receipt of, not later than five (5) days prior to the Closing Date, there shall not have occurred any material adverse changeall 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, or any development involving a prospective material adverse changeincluding without limitation, 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.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the CompanyPatriot Act, to the effect set forth in clause (b) above and extent such information has been requested prior to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to and in each case, the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws results of the State of California applicable Patriot Act 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the type ordinarily included in accountants' "comfort letters" to underwriters OFAC searches with respect to the financial statements Issuer and certain financial information contained in its Subsidiaries shall be satisfactory to the Purchasers;
(g) subject to the Note Waivers (including any cross-default under this Agreement that may arise as a matter of any Default or incorporated by reference into Event of Default under the Prospectus. [The several obligations Secured SPA), no Default or Event of Default shall have occurred and is continuing or would occur as a result of such purchase; and
(h) receipt of all customary resolutions or written consents of the Underwriters to purchase Additional Securities hereunder are subject to delivery to Issuer’s appropriate governing body approving and authorizing the Manager on the Option Closing Date Transactions. For purposes of such opinions, certificates and documents contemplated by determining whether the conditions specified in this Section 5 as such Manager shall reasonably request relating to 7.1 have been satisfied, by funding amounts for the issuance purchase of the Additional Securities.](6) _______________ (6) Include if a green shoe is Notes hereunder at the Closing, each Purchaser shall be deemed to have consented to, approved or accepted, or to be offered satisfied with, each document or other matter required hereunder to Underwritersbe consented to or approved by or acceptable or satisfactory to such Purchaser.
Appears in 1 contract
Samples: Securities Purchase Agreement (Faraday Future Intelligent Electric Inc.)
Conditions to Closing. The several obligation of Allied to enter into this Agreement and to perform its obligations of the Underwriters hereunder are is subject to the satisfaction of the following conditionsconditions on or prior to the Closing Date:
(a) No stop order suspending the effectiveness The representations and warranties set forth in Article IV hereof ---------- shall be true and correct on and as of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened by date of the CommissionTransaction.
(b) Subsequent The Company and each of the 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 occurred and be continuing.
(c) Allied shall have received the following items:
(i) a favorable written opinion of counsel for the Company and the Guarantors (A) dated the Closing Date, (B) addressed to Allied, and (C) covering such matters relating to the execution Investment Documents and delivery 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 Underwriting Agreement 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 a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of the Company and each Guarantor as of a recent date, from such Secretary of State; (B) a certificate of the Secretary or Assistant Secretary of the Company and each Guarantor dated the Closing Date and certifying (1) that attached thereto is a true and complete copy of the by-laws of the Company as in effect on the Closing Date and at all times since a date prior to 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 certificate of good standing furnished pursuant to clause (A) above, and (4) as to the incumbency and specimen signature of each officer executing any Investment Document or any other document delivered in connection herewith on behalf of the 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 other documents as Allied may reasonably request;
(iv) all amounts due and payable on or 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.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Companyincluding, to the effect set forth 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 clause Section 4.6; ------- ---
(bvii) above the employment contracts, as described in Section 4.24; ------------ and
(viii) the Registration Rights Agreement, in form and substance acceptable to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedparties.
(d) The Manager After giving effect to the transactions contemplated hereby, 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 on fully executed conformed copies of the Closing Date opinions Acquisition Agreement and each of Piper & Marbury, Maryland counsel the other documents related to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated Acquisition Agreement. On the Closing Date, to the effect set forth Acquisition shall have been consummated in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than accordance with the laws terms of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertibleAcquisition Agreement.
(f) The Manager closing of the Senior Debt shall have occurred.
(g) All legal matters incident to this Agreement, the Debentures and the other Investment Documents shall be satisfactory to Allied.
(h) No event that has a Material Adverse Effect shall have occurred.
(i) Allied shall have received on the Closing Date a lettersuch other documents, dated the Closing Date, in form and substance satisfactory to the Manager, from the Company's independent public accountants, containing statements instruments 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall Allied may reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersrequest.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are Closing is subject to the satisfaction or waiver by the party to be benefited thereby of the following conditions:
(a) No stop order suspending The Parent and the effectiveness 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 Registration Statement is transfer of 404,350 shares of Preferred Stock to the Purchaser’s account at the Depository Trust Company; and
(iii) a legal opinion of Company Counsel, in effectthe form of Exhibit B attached hereto, and no proceedings for such purpose are pending before or threatened addressed to the Purchaser;
(iv) the Prospectus Supplement, a copy of which shall have been filed by the CommissionParent 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) Subsequent At the Closing, the Purchaser shall have delivered or caused to be delivered to the execution Parent and the Company the following:
(i) this Agreement duly executed by the Purchaser;
(ii) the Preferred Stock Consideration; and
(iii) the Purchaser’s Subscription Securities, evidenced by delivery to the Company of a certificate or certificates evidencing the Purchaser’s interest in units of USRP/HCI Partnership 1, L.P.
(c) All representations and warranties of the Underwriting Agreement other party contained herein shall remain true and correct as of the applicable Closing Date.
(d) There shall have been no Material Adverse Effect (as defined in Section 3.1(b)) with respect to the Parent and the Company from June 30, 2003 through the date hereof.
(e) From the date hereof to the Closing Date, trading in the 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, there 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 adverse changeoutbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any development involving a prospective material adverse changechange in, any financial market which, in each case, in the condition, financial or otherwise, or in the earnings, business or operations, reasonable judgment of the Company and its subsidiariesPurchaser, taken as a whole, from that set forth in makes it impracticable or inadvisable to purchase the Prospectus.
(c) The Manager shall have received on shares of Preferred Stock at 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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertibleClosing.
(f) The Manager Parent shall have received on entered into a credit agreement (“Credit Agreement”) with Bank of America, N.A., as agent (the Closing Date a letter“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 Lenders and that certain summary of terms and conditions attached to the Commitment Letter. On the Closing Date, the Credit Agreement shall be in form full force and substance effect. The Credit Agreement shall 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 transactions contemplated to occur on the Closing Date). On the Closing Date, the Parent shall have issued a term loan note to the Agent in an amount of not less than $35,000,000 under the Credit Agreement and shall have paid via wire transfer of immediately available funds 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 ManagerPurchaser.
(g) On or before the Closing Date, from the Company's independent public accountants, containing statements Parent shall have prepared and information 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 type ordinarily included in accountants' "comfort letters" to underwriters with respect Common Stock at least equal to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager Actual Minimum on the Option Closing Date date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersapplication.
Appears in 1 contract
Samples: Securities Purchase Agreement (U S Restaurant Properties Inc)
Conditions to Closing. The several obligations of the Underwriters hereunder are Placement Agents under this Agreement to purchase the Units will be subject to the following 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 date of the Underwriting this Agreement and prior to the Closing Date, ,
(i) there shall not have occurred any material adverse 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 material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiariesthe Subsidiaries, taken as a whole, from that set forth in the ProspectusPreliminary 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.
(cb) The Manager You shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer the Chief Financial Officer and the General Counsel of the Company, to the effect set forth in clause (ba)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements contained herein and satisfied all of the obligations on its part conditions contained herein to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(dc) The Manager You shall have received on the Closing Date opinions an opinion of Piper & MarburyXxxxxxx Coie, Maryland Washington counsel to the Company, dated the Closing Date, to the effect set forth in Exhibit D.
(d) You shall have received on the Closing Date an opinion of Xxxxxxxxxx & Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & XxxxxxxxLLP, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.Exhibit E.
(e) The Manager You shall have received on the Closing Date an opinion opinions of special foreign counsel for to the Underwriters 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 selection Closing Date opinions of whom shall be approved by foreign counsel to the Company)Company in the Cayman Islands, dated the Closing Date, to the effect set forth in 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 included if the Offered Securities are convertible.G.
(fg) The Manager You shall have received on the Closing Date a letteropinions 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 form and substance satisfactory to you.
(j) You shall have received on each of the Managerdate hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form 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 or incorporated by reference into the Prospectus. [The several obligations Final Memorandum.
(k) You shall have received on each of the Underwriters date hereof and the Closing Date a letter, dated the date hereof, in form and substance satisfactory to purchase Additional Securities hereunder are subject 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 delivery underwriters with respect to the Manager financial statements and certain financial information contained in the Final Memorandum.
(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 received executed copies of the Tax Sharing Agreement, the Overhead Services Agreement and the Right of First Opportunity Agreement, each between the Company and Nextel Communications, Inc., and the side letter between Motorola, Inc. and the Company; and each such agreement shall be in full force and effect on the Option Closing Date of Date.
(n) You shall have received such opinions, other certificates and documents contemplated by this Section 5 as such Manager shall you or your counsel may reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersrequest.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are subject to the following 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 On 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.
(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, condition precedent to the effect set forth in clause (b) above and to the effect that Buyer's obligations hereunder, all of the representations and warranties of the Company contained Seller made herein shall be true and 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 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 the date hereof by its secretary or assistance secretary authorizing the execution, delivery and performance of this Agreement are true by the Seller and correct approving the transactions contemplated hereby;
(b) The Certificate of Incorporation of the Seller, certified as of a date reasonably near the Closing Date by 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 the 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 the Closing Date Date, certifying (i) the names and that signatures of the Company has complied officers authorized on the Seller's behalf to execute, and the officers and other employees authorized to perform, this Agreement by the Seller and (ii) a copy of the Seller's By-laws;
(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 appropriate jurisdictions; or other similar instruments or documents as may be necessary or, in the opinion of the Buyer, desirable under the UCC of all appropriate jurisdictions to evidence or perfect the Buyer's ownership interests in all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.Historical Advances;
(df) The Manager shall have received on 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 Seller (except the Lien of a Trust under the relevant Scheduled Pooling and Servicing Agreement);
(g) Certified copies of lien search reports dated a date reasonably near the Closing Date opinions listing all effective financing statements that name the Seller (under its present name and 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 paragraph (e) above, together with copies of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws financing statements (none of which shall cover any of the State of California Historical Advances, the Scheduled Pooling and the federal law of the United States of America, on an Servicing Agreements or any related rights);
(h) A favorable 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have received on the Closing Date an opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company)Seller, dated the Closing Date, date hereof and addressed to the effect set forth in paragraphs (ii)Buyer relating to corporate matters, (iii) legality and (iv) [validity of this Agreement, 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 a favorable opinion or opinions of local O'Melveny & Myerx XXX, 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letterSeller, dated the Closing Date, in form date hereof and substance satisfactory addressed to the Manager, from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request Buyer relating to the issuance characterization of the Additional Securities.](6transfer of the Historical Advances in a bankruptcy case as an absolute transfer, enforceability of this Agreement and of the Scheduled Supplements, the perfection of the Buyer's ownership interests in the Historical Advances and such other matters as the Buyer may reasonably request;
(i) _______________ An officer's certificate dated the date hereof in a form reasonably acceptable to the Buyer executed by a Responsible Officer of the Seller to the effect that (6i) Include if a green shoe is to be offered to Underwriters.all
Appears in 1 contract
Samples: Historical Advance Purchase Agreement (Aames Financial Corp/De)
Conditions to Closing. The several 5.1 Conditions to Purchaser's Obligations at Closing. Each Purchaser's obligations at the Closing, including without limitation its obligation to purchase the Preferred Shares, are conditioned upon the fulfillment of each of the Underwriters hereunder are subject to the following conditionsevents:
(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.
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are shall be true and correct in all material respects as of the date of the Closing as if made on such date; provided that the representations and warranties made by the Company in paragraph 3.18 shall be true and correct in all material respects as of the date specified therein;
5.1.2 the Company 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 the Company on or before the Closing;
5.1.3 the Company shall have delivered to such Purchaser a certificate, signed by an officer of the Company, certifying that the conditions specified in paragraphs 5.1.1 and 5.1.2 above have been fulfilled;
5.1.4 the Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware, and shall have furnished such Purchaser with a file-stamped copy thereof;
5.1.5 the Company shall have delivered to such Purchaser an opinion of counsel for the Company, dated as of the date of the Closing, in the form attached as Exhibit 5.1.5 hereto;
5.1.6 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.7 the Common Stock shall be designated for quotation and actively traded on the Nasdaq National Market;
5.1.8 there shall have been no material adverse changes in the consolidated business or financial condition of the Company and its subsidiaries taken as a whole since the date of the Company's most recent audited financial statements contained in the Disclosure Documents;
5.1.9 the Company shall have authorized and reserved for issuance upon conversion of the Preferred Shares the number of shares of Common Stock specified in the Registration Rights Agreement;
5.1.10 the Purchasers shall have received executed irrevocable proxies, in substantially the form of Exhibit 5.1.10 hereto (each, a "Management Proxy" and collectively, the "Management Proxies"), from not more than ten (10) stockholders of the Company who own, in the aggregate, not less than 47% of the outstanding shares of Common Stock as of the Closing Date Date;
5.1.11 the Company shall have received notice from the Securities and Exchange Commission (the "SEC") that the SEC has no further comments with respect to the Company's Proxy Statement no later than November 21, 1997; and
5.1.12 the Company has shall have obtained Stockholder Approval.
5.2 Conditions to Company's Obligations at Closing. The Company's obligations at the Closing are conditioned upon the fulfillment of each of the following events:
5.2.1 the representations and warranties of each Purchaser shall be true and correct in all material respects as of the date of the Closing as if made on such date;
5.2.2 each Purchaser shall have complied with or performed all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by such Purchaser on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.Closing; and
(d) The Manager 5.2.3 each Purchaser shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel delivered to the CompanyCompany a certificate, Xxxxx X. Xxxxxxsigned by an officer of such Purchaser, Esq., Vice President and General Counsel-- Corporate Affairs for certifying that the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 conditions specified in paragraphs (ii), (iii) 5.2.1 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 included if the Offered Securities are convertible5.2.2 above have been fulfilled.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Samples: Securities Purchase Agreement (Metal Management Inc)
Conditions to Closing. The several obligations obligation of the Underwriters hereunder are Purchaser to --------------------- pay for the Note upon initial issuance is subject to (i) satisfaction of the conditions precedent set forth in Section 4.01 of the Note Purchase Agreement and (ii) receipt by the Note Insurer of the following conditionsdocuments, instruments and fees, all of which shall be in a form and substance acceptable to the Note Insurer:
(a) No stop order suspending An executed copy of this Agreement, the effectiveness Master Receivables Purchase Agreement, the Premium Side Letter and each of the Registration Statement is in effectother Transaction Documents (other than Hedging Arrangements not then executed, which shall be subject to the review and no proceedings for such purpose are pending before or threatened by the Commissionapproval procedures of Section 5.3 hereof).
(b) Subsequent to the execution Any other fees or amounts due and delivery of the Underwriting Agreement and prior to payable on the Closing Date, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, Date in accordance with 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 ProspectusPremium Side Letter.
(c) The Manager Such other documents, approvals, consents, instruments, certificates or opinions as the Collateral Agent or the Secured Parties 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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedreasonably request.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws A copy of the State resolutions of California the Board of Directors of AmeriCredit, certified by its Secretary approving the execution, delivery and performance by it (and the federal law Debtor) of this Agreement, the United States of AmericaMaster Receivables Purchase Agreement, 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 Trust Agreement and the federal law of other Transactions Documents to be delivered by it (and the United States of AmericaDebtor) hereunder or thereunder and all other documents evidencing necessary corporate action (including shareholders consents) and government approvals, 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwritersany.
(e) The Manager shall have received on A copy of the Closing Date an opinion resolutions of special counsel for the Underwriters Board of Directors of AMTN, certified by its Secretary approving the execution, delivery and performance by it of this Agreement, the Master Receivables Purchase Agreement, the Trust Agreement and the other Transactions Documents to be delivered by it hereunder or thereunder and all other documents evidencing necessary corporate action (the selection of whom shall be approved by the Company)including shareholders consents, dated the Closing Date, to the effect set forth in paragraphs (ii), (iiiif any) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in Exhibit C. In giving such opiniongovernment approvals, 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 included if the Offered Securities are convertibleany.
(f) The Manager shall have received on certificate of trust of the Debtor certified by the Secretary of State of the State of Delaware dated a date reasonably prior to the Closing Date.
(g) The certificate of incorporation of AmeriCredit certified by the Secretary of State of the State of Delaware dated a date reasonably prior to the Closing Date.
(h) The certificate of incorporation of AMTN certified by the Secretary of State of the State of Delaware dated a date reasonably prior to the Closing Date.
(i) (i) The articles of incorporation of the Trustee certified by an officer of the Trustee dated a date reasonably prior to the Closing Date and (ii) a letter, dated power of attorney granted by the Closing Date, Trust in form and substance satisfactory to the Manager, from the Company's independent public accountants, containing statements and information favor of the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ Bankers Trust (6) Include if a green shoe is to be offered to UnderwritersDelaware).
Appears in 1 contract
Conditions to Closing. The several 5.1 Conditions to Investors' Obligations at the Closing. Each Investor's obligations to effect the Closing, including without limitation its obligation to purchase Preferred Shares, Warrants and a Preferred Warrant at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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 and the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement and in the other Transaction Documents that are not qualified by materiality or "Material Adverse Effect" shall be true and correct in all material respects, and the representations and warranties of the Company set forth in this Agreement and in the other Transaction Documents that are qualified by materiality or "Material Adverse Effect" shall be true in all respects, in each case, 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 shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in the Articles of Amendment, this Agreement and 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 Articles of Amendment with the Secretary of State of the State of Florida, and shall have delivered to such Investor written evidence of the acceptance of such filing;
5.1.4 the Closing Date shall occur on the Execution Date unless a later date is mutually agreed by the Company and such Investor;
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 as of the Closing Date 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, (A) attaching (i) the Articles of Incorporation and By-Laws of the Company, (ii) resolutions passed by its Board of Directors to authorize the transactions contemplated hereby and by the other Transaction Documents, and (iii) the written consent of stockholders of the Company holding shares of the Company's capital stock representing a majority of the voting power of the Company's outstanding capital stock (the "MAJORITY STOCKHOLDER CONSENT") approving (x) the issuance of Common Stock in excess of the Cap Amount in connection with the transactions contemplated by this Agreement, the Articles of Amendment and the other Transaction Documents, (y) an increase in the number of shares of the Company's authorized Common Stock from 150,000,000 to 300,000,000 and (z) solely for purposes of applicable Nasdaq regulations and listing requirements, a change of control of the Company; and (B) 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 the form attached hereto as Exhibit H;
5.1.8 the Company shall have delivered to such Investor the duly executed Investor Warrant and Preferred Warrant, and certificates representing the Preferred Shares, being purchased by such Investor at the Closing;
5.1.9 the Company shall have delivered to Satellite the duly executed Satellite Consulting Warrant;
5.1.10 the Company shall have executed and delivered to such Investor the Registration Rights Agreement and the Company shall have executed and delivered to Goldman the Goldman Registration Rights Agreement;
5.1.11 the principal amount of the convertible subordinated notes issued by the Company and shares of the Company's Series A Preferred Stock, each as described on Schedule 5.1.11 hereto, shall have been converted in accordance with the terms thereof into shares of Common Stock;
5.1.12 an escrow agreement in the form attached hereto as Exhibit I (the "STOCKHOLDER ESCROW AGREEMENT") shall have been executed and delivered by the Company and the other parties named therein, and the shares of the Company's Series A Preferred Stock and Series C Preferred Stock set forth on Schedule 5.1.12 hereto shall have been placed in escrow pursuant to the Stockholder Escrow Agreement, which Stockholder Escrow Agreement shall provide (x) that such securities shall remain in escrow until the earlier of (i) such time as Stockholder Approval has been obtained and (ii) June 1, 2005, (y) for the Company to deposit with the escrow agent under the Stockholder Escrow Agreement at the Closing agreement the funds necessary to redeem such securities, and (z) for such securities and funds to remain in escrow pursuant to the Stockholder Escrow Agreement until the earlier of (i) such time as Stockholder Approval has been obtained, after which such securities shall be redeemed by the Company, and (ii) June 1, 2005;
5.1.13 each of the record holders of the securities described on Schedules 5.1.11 and 5.1.12 hereto (the "CONTROLLING STOCKHOLDERS") shall have delivered to the Company, and the Company shall have executed and delivered to each Controlling Stockholder, an agreement, in the form attached hereto as Exhibit J, (the "VOTING AGREEMENT"), pursuant to which (i) each Controlling Stockholder grants to the chairman and/or president of the Company such Controlling Stockholder's irrevocable proxy to vote all voting securities of the Company held by the Controlling Stockholder with specific instructions (x) not to vote such securities in favor of any action that would be inconsistent with the transactions contemplated by this Agreement and (y) to vote such securities in favor of Stockholder Approval and in favor of any action (other than any action described in the foregoing clause (x)), including without limitation with respect to the election of directors, recommended by the Board of Directors; and (ii) each Controlling Stockholder agrees not to exercise any voting rights (whether at a meeting of stockholders or by written consent) with respect to any voting securities of the Company held by such Controlling Stockholder, other than any such voting rights exercised pursuant to the proxy included in the Voting Agreement;
5.1.14 the Company shall have obtained the written agreement of each Key Employee to refrain from selling shares of Common Stock prior to the Effective Date;
5.1.15 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 contained in the Disclosure Documents;
5.1.16 the Common Stock shall be actively traded and quoted on the Nasdaq National Market;
5.1.17 the Company shall have authorized and reserved for issuance upon conversion of the Preferred Shares and exercise of the Warrants a number of shares of Common Stock equal to not less than the Reserved Amount;
5.1.18 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;
5.1.19 each of Xxxxxx Xxxxxxx and Huntington Corporation shall have waived in writing such holder's right to include such holder's shares of Common Stock (whether issuable upon conversion of convertible preferred stock, upon exercise of warrants, or otherwise) in the Registration Statement or in the registration statement, if any, filed pursuant to the Goldman Registration Rights Agreement, or otherwise to participate in such registration pursuant to the Registration Rights Agreement or the Goldman Registration Rights Agreement of the Conversion Shares and Warrant Shares, other than as set forth in that certain Registration Rights Agreement, dated as of the date hereof, among such holders and the Company and attached hereto as Exhibit K; and
5.1.20 each of Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxx Xxxxxxxx and Xxxxxxx Xxxxxx shall have executed and delivered to the Company a letter agreement, in the form attached hereto as Exhibit L, pursuant to which each such Person shall agree, immediately upon the request of Xxxxxx Xxxxxxx or any successor Chairman of the Board, to resign such Person's position as a director of the Company.
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:
5.2.1 the representations and warranties of such Investor set forth in this Agreement and in the other Transaction Documents that are not qualified by materiality or "Material Adverse Effect" shall be true and correct in all material respects, and the representations and warranties of such Investor set forth in this Agreement and in the other Transaction Documents that are qualified by materiality shall be true in all respects, in each case, 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);
5.2.2 such Investor shall have complied with or performed all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement and in the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by such Investor on or before the Closing Date. The officer signing and delivering ;
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 or by the other Transaction Documents;
5.2.4 such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager Investor shall have received on executed each Transaction Document to which it is a party and shall have delivered the Closing Date opinions of Piper & Marbury, Maryland counsel same to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs ; and
5.2.5 such Investor shall have tendered to the Escrow Agent the Purchase Price for the CompanyPreferred Shares, Investor Warrant and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated Preferred Warrant being purchased by it at the Closing Datein accordance with the terms of the Investor Escrow Agreement and the Escrow Agent shall have been authorized to release and deliver the Purchase Price, less the Placement Agent Fee, to the effect set forth Company in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than accordance with the laws terms of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersInvestor Escrow Agreement.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several obligations Closing on the Loan is conditioned upon the satisfaction of each of the Underwriters hereunder are subject to the following conditionsfollowing:
(a) No stop order suspending the effectiveness of the Registration Statement is in effect, all Financing Documents and no proceedings for such purpose are pending before or threatened by the Commission.
(b) Subsequent other instruments applicable to the execution Loan are in form and delivery of the Underwriting Agreement and prior content satisfactory to the Closing Date, there shall not Bank and 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 been duly executed and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 delivered in form and substance satisfactory to the Manager, Bank and shall expressly permit have not been modified, amended or rescinded, shall be in full force and effect on and as of the Underwriters Closing Date and executed original or certified copies of each thereof shall have been delivered to rely thereon the Bank;
(b) the Bank has received a certified copy of the Authorizing Ordinance of the Enterprise, which shall be in form and content satisfactory to the 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 if 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;
(c) the Enterprise has provided a certificate certifying that on the Closing Date each representation and warranty on the 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 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 such opinion were addressed to Underwriters.other matters as the Bank might reasonably request;
(d) the Enterprise has provided a certificate certifying that the only Senior Debt outstanding as of the Closing Date is the 2018A Bonds and the 2018B Bonds and that no Parity Debt (other than the 2019 Note) is outstanding as of the Closing Date;
(e) The Manager the Bank shall have 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, Xxxxxx Snow LLP to the effect set forth in paragraphs (ii), (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs that (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 obligation of the United States Enterprise to pay the principal of America, and interest on an opinion or opinions the Loan constitutes a valid and binding special obligation of local counsel satisfactory the Enterprise payable solely from the Net Pledged Revenues with a lien on the Net Pledged Revenues which is subordinate to the Manager, so long as each such opinion shall be dated lien thereon of the Closing Date and in form and substance satisfactory to the ManagerSenior Debt, and shall expressly permit (ii) this Agreement and the Underwriters to rely thereon Note are valid and binding obligations of the Enterprise, enforceable against the Enterprise in accordance with their respective terms, except as if such opinion were addressed to Underwriters. _______________ (5) References to enforceability may be included if the Offered Securities are convertible.limited by bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting creditors’ rights generally, and by equitable principles, whether considered at law or in equity;
(f) The Manager all proceedings taken in connection with the transactions contemplated by 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 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 Enterprise to the Bank is accurate in all respects;
(k) the Bank shall have received on such other certificates, approvals, filings, opinions and documents as shall be reasonably requested by the Closing Date a letter, dated Bank;
(l) all other legal matters pertaining to the Closing Date, in form execution and substance delivery of this Agreement and the other Financing Documents shall be reasonably satisfactory to the Manager, from 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersBank.
Appears in 1 contract
Samples: Loan Agreement
Conditions to Closing. The several obligations obligation of Buyer to consummate the Underwriters hereunder are transactions contemplated by this Agreement is subject to the satisfaction of the following conditionsconditions on or before the Closing Date:
(a) No stop order suspending The representations and warranties set forth in Article 3 and the effectiveness information set forth in the schedules to this Agreement shall have been true and correct in all material respects as of the Registration Statement is effective date of this Agreement and shall be true and correct in effectall material respects as of the Closing Date as though made on the Closing Date, except for those representations and warranties which address matters only as of a particular date, which shall continue to be true and correct in all material respects as of that particular date, and no proceedings for such purpose are pending before or threatened by the Commission.Sellers shall have delivered to Buyer a certificate to that effect;
(b) Subsequent The Sellers and the Companies shall have performed or complied with all of the covenants and agreements required under this Agreement, and the Sellers shall have delivered to Buyer a certificate to that effect;
(c) No order of any court or administrative agency shall be in effect 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 execution Escrow Agreement, in each case in accordance with the provision in Section 8.1 permitting the use of facsimile copies;
(e) Any and delivery all governmental approvals and all consents by third parties that are required for the transfer of the Underwriting Agreement Ownership Interests and the consummation of the transactions contemplated hereby, shall have been obtained and no such approval or consent shall have been conditioned upon the modification in any material respect, cancellation or 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 Sellers 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;
(f) Buyer shall have received reasonable confirmation from the Sellers (including payoff letters from each of the Companies’ lenders) that all Funded Indebtedness has been, or will be in connection with the Closing, satisfied in full and of the absence of any and all Encumbrances affecting any Company, the Facility or Business;
(g) All necessary filings pursuant to the HSR Act shall have been made and all applicable waiting periods thereunder shall have expired or been terminated;
(h) The Sellers shall have delivered to Buyer the Audited Statements and the 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 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 and between any of the Companies and AAC; and
(t) there shall not have occurred been 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.
(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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the type ordinarily included in accountants' "comfort letters" to underwriters change with respect to the financial statements and certain financial information contained in Facility or incorporated by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of such opinionsBusiness since June 30, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters2006.
Appears in 1 contract
Samples: Business Purchase Agreement (Macquarie Infrastructure CO LLC)
Conditions to Closing. The several obligations a. It shall be a condition to the Company's obligation to close the purchase of the Underwriters hereunder are subject Shares from the Seller that each of the following 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 following conditions:
(a) No stop order suspending the effectiveness of the Registration Statement is in effectknowledge, information 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.
(c) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer 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 effect set forth in clause (b) above transactions contemplated by this Agreement and to the effect that the representations and warranties an authorized officer of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel delivered to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the CompanySeller a certificate, dated the Closing Date, to such effect;
iii. the effect set forth representations made by the Seller in Exhibits A, B this Agreement shall be true and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, correct in all material respects as to matters governed by laws other than the laws of the State of California date hereof and the federal law of the United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & XxxxxxxClosing Date, and Xxxxx Xxxx & Xxxxxxxx may rely, as Seller shall deliver 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 Company at 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.
(e) The Manager shall have received on the Closing Date an opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company)a certificate, dated the Closing Date, to such effect.
b. It shall be a condition to the effect set forth in 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 Seller's obligation to matters governed by laws other than close the federal law sale of the United States of America, on an opinion or opinions of local counsel satisfactory Shares to the Manager, so long as Company that each such opinion shall be dated of 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 included if the Offered Securities are convertible.
(f) The Manager following conditions shall have received on first been satisfied, any one or more of which may be waived by the Closing Date a letter, dated the Closing Date, Seller in form and substance satisfactory to the Manager, from his discretion:
i. the Company's independent public accountants, containing statements and information Board of Directors shall have approved the purchase of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Shares and the consummation of this Agreement;
ii. no action or proceedings shall have been instituted or, to the financial statements knowledge, information and certain financial information contained in belief of Seller, shall have been threatened before a court or incorporated other government body or by reference into the Prospectus. [The several obligations of the Underwriters any public authority 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.restrain or
Appears in 1 contract
Conditions to Closing. 7.01 Conditions to GMC's, GMI's and Merger Subsidiary's Obligations. -------------------------------------------------------------- The several obligations obligation of GMC, GMI and Merger Subsidiary to consummate the Underwriters hereunder are transactions contemplated by this Agreement is subject to the satisfaction of the following conditionsconditions at or before the Effective Time:
(a) No stop order suspending the effectiveness The representations and warranties set forth in Article III hereof shall be true and correct in all material respects at and as of the Registration Statement is in effect, Effective Time as though then made and no proceedings as though the Effective Time had been substituted for the date of this Agreement throughout such purpose are pending before or threatened representations and warranties (without taking into account any disclosures by the Commission.Company of discoveries, events or occurrences arising on or after the date hereof), except that any such representation or warranty made as of a specified date (other than the date hereof) shall only need to have been true on and as of such date;
(b) Subsequent to the execution and delivery The Company shall have performed in all material respects all of the Underwriting Agreement covenants and agreements required to be performed by them prior to the Closing Date, there Effective Time under this Agreement;
(c) The Company shall not have occurred any material adverse changeobtained, or any development involving caused to be obtained, each consent and approval necessary in order that the transactions contemplated herein not constitute a prospective material adverse change, in the condition, financial breach or otherwiseviolation of, or result in a right of termination or acceleration of, or creation of any encumbrance on any of the earningsCompany's assets pursuant to the provisions of, business any agreement, arrangement or operationsundertaking of or affecting the Company or any license, franchise or permit of or affecting the Company;
(d) The Letter Agreement, this Agreement, the Certificate of Merger and the Merger shall have 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, the Company shall have delivered to GMI evidence, in form satisfactory to GMI's counsel, of such authorization and approval, and the Certificate of Merger shall have been duly executed by the Company;
(e) All material governmental filings, authorizations and 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, 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 subsidiariesdue 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 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 date 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, demonstration units, consigned units and parts and other equipment has been disclosed to GMI as of the date of this Agreement) regarding the business, assets, properties, condition (financial or otherwise) or results of operations of the Company which, 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, from that set forth of $250,000 or more (a "Material Adverse Effect");
(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 Prospectus.aggregate, has, or would be reasonably likely to have, a Material Adverse Effect on the Company;
(ck) The Manager 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 on from counsel for the Closing Date Company a certificatewritten opinion, dated the Closing Date date of the Effective Time, addressed to GMC, GMI and signed by an executive officer Merger Subsidiary and reasonably satisfactory to counsel for GMI;
(m) Prior to the Effective Time, the Company shall have delivered to GMI all of the following:
(i) a certificate of the Secretary of the Company, to dated as of the effect date of the Effective Time, stating that the conditions precedent set forth in clause subsections (a) and (b) above and to have been satisfied;
(ii) a copy of each of (X) the effect that text of the representations and warranties resolutions adopted by the board of directors of the Company contained in authorizing the execution, delivery and performance of the Letter Agreement, this Agreement and the Certificate of 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 as copies of the Closing Date such resolutions and Bylaws, respectively, and that the Company has complied with all of the agreements such resolutions and satisfied all of the obligations on its part to be performed bylaws were duly adopted and have not been amended or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.rescinded;
(diii) The Manager shall have received on the Closing Date opinions of Piper & MarburyCompany's minute books, Maryland counsel stock transfer records, corporate seal and other materials related to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for 's corporate administration;
(iv) a copy of the Certificate of Incorporation of the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to certified by the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws Secretary of State of the State of California and the federal law of the United States of America, on an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & XxxxxxxDelaware, and Xxxxx Xxxx & Xxxxxxxx may rely, as to matters governed by laws other than Certificates of Good Standing from the laws Secretary of State of the State of New York Delaware evidencing the good standing of the Company in such jurisdiction;
(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 federal law Certificate of Merger and the Related Agreements executed by the Company;
(vii) an executed copy of each of the United States 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 canceled $280,000 of Americashort-term Company debt, on an opinion of Piper & Marburyplus accrued but unpaid interest, in each case so long as exchange for the issuance by the Company to the Stockholder Lenders of a number of shares of the Company's Common Stock equal to the amount of such opinion debt and accrued but unpaid interest divided by $1.00;
(o) No more than 35 of the stockholders of the Company shall not be dated "accredited investors" within the Closing Date meaning of Rule 501 under the 1933 Act, and the Company shall have delivered to GMI evidence, in form and substance satisfactory to GMI's counsel, of compliance with this condition; and
(p) H&QGF, GMC and GMI shall have negotiated and executed loan agreements providing for one or more loans in the Manageraggregate amount of up to $3,000,000 to be made by H&QGF to GMC, and shall expressly permit GMI or the Underwriters to rely thereon as if such opinion were addressed to UnderwritersSurviving Corporation.
(eq) The Manager Company shall have received on executed 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 (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 included if the Offered Securities are convertibleCollateral Agreement.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several obligations Closing of the Underwriters hereunder are subject to sale of the Shares is conditioned upon satisfaction of the following conditionsconditions precedent on or before the Closing Date:
(ai) No stop order suspending the effectiveness as of the Registration Statement is in effectClosing, and no proceedings for such purpose are legal action, suit or proceeding shall be pending before against the Company that seeks to restrain or threatened prohibit the transactions contemplated by the Commission.this Agreement;
(bii) 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.
(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 and the Subscribers contained in this Agreement shall have been true and correct in all material respects on the date of this Agreement (except whether such representations are qualified by material or material adverse effect, which shall be true and correct in all respects) and shall be true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received if made on the Closing Date opinions and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company in connection with the consummation of Piper & Marbury, Maryland counsel the transactions contemplated by the Transaction Documents at or prior to the CompanyClosing Date and the Company shall deliver a certificate, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Companyexecuted by its Chief Executive Officer, dated as of the Closing Date, certifying that the foregoing is true;
(iii) the Company shall deliver to the effect set forth in Exhibits ASubscribers, B and Ca certificate from the Company, respectively. In giving such opinionsigned by its Secretary or Assistant Secretary, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws including incumbency specimen signatures of any signatory of any Transaction Document of the State Company and certifying that the attached copies of California the Charter and the federal law Bylaws, and resolutions of the United States Board 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 Directors of the State of New York Company approving this Offering, are all true, complete and correct and remain in full force and effect;
(iv) The Company and Eloxx shall have provided the federal law Subscribers with evidence that the closing of the United States of America, on an opinion of Piper & Marbury, in each case so long as such opinion shall be dated Merger will occur immediately after 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 Underwritershereunder.
(ev) The Manager shall have 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, Each Subscriber transferred to the effect set forth in 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 Company its respective portion 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 ManagerAggregate Purchase Price, and the Aggregate Purchase Price shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters. _______________ (5) References to not be included if the Offered Securities are convertibleless than US $10,000,000.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters.
Appears in 1 contract
Conditions to Closing. The several 5.1. Conditions to each Investor’s Obligations at the Closing. Each Investor’s obligations to effect the Closing, including without limitation its obligation to purchase Shares at the Closing, are conditioned upon the fulfillment (or waiver by such Investor in its sole and absolute discretion) of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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 and the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.shall use commercially reasonable efforts to cause each of such conditions to be satisfied:
(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 a. the representations and warranties of the Company contained set forth in this Agreement are and in the other Transaction Documents shall be true and correct as of such date as if made on such date (except that to the Closing Date extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and correct as of that particular date);
b. the Company has shall have complied with or performed all of the agreements agreements, obligations and satisfied all of the obligations on its part conditions set forth in this Agreement that are required to be complied with or performed or satisfied by the Company on or before the Closing Date. The officer signing and delivering such certificate may rely upon Closing;
c. the best of his knowledge as to proceedings threatened.
(d) The Manager Company shall have received on delivered to each Investor duly executed certificates representing the Closing Date opinions of Piper & MarburyShares being purchased by such Investor, Maryland counsel unless the Shares are issued in uncertificated form;
d. the Company shall have delivered to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Companyeach Investor a secretary’s certificate, dated as of the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, certifying as to matters governed (A) the incorporation and active status of the Company in the State of Delaware based upon a certificate issued by laws other than the laws Secretary of State of the State of California and the federal law Delaware as of the United States a date within ten (10) days 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (B) the effect set forth in paragraphs (ii)resolutions of the Board of Directors approving the transactions contemplated hereby, (iiiC) 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 relythe Restated Certificate of Incorporation of the Company, as amended to matters governed by laws other than the federal law date, certified as of the United States a date within ten (10) days 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, and (D) the By-Laws of the Company, each as in form and substance satisfactory effect as of the Closing Date;
e. Counsel to the ManagerCompany shall have delivered to the Investors a legal opinion substantially in the form attached hereto as Exhibit B;
f. there shall be no injunction, from 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 Company's independent public accountants, containing statements and information consummation of the type ordinarily included in accountants' "comfort letters" transactions contemplated hereby and by the other Transaction Documents;
g. the Company shall have executed each Transaction Document to underwriters with respect which it is a party and shall have delivered the same to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager Investor; and
h. no Material Adverse Effect shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritershave occurred.
Appears in 1 contract
Conditions to Closing. The several 5.1 Conditions to Purchasers' Obligations at the Closing. Each Purchaser's obligations to effect the Closing, including without limitation its obligation to purchase a Debenture and Warrant at the Closing, are conditioned upon the fulfillment or waiver by such Purchaser of each of the Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness events as 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.:
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 that are required to be complied with or performed by the Company on or before such Closing;
5.1.3 the Closing Date shall occur on a date that is not later than March 29, 2002;
5.1.4 the Company shall have delivered to such 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 Date Closing, it being understood that such Purchaser may rely on such certificate as though it were a representation and that warranty of the Company has complied with all of made herein;
5.1.5 the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager Company shall have received on the Closing Date delivered to such Purchaser one or more opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving as of such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Datedate, in form and substance satisfactory to such Purchaser;
5.1.6 the Manager, from Company shall have executed and delivered the Debenture and the Warrant being purchased by such Purchaser;
5.1.7 the Company shall have executed and delivered the Registration Rights Agreement;
5.1.8 the Company shall have executed and delivered the Deed of Trust and recorded the Deed of Trust with the appropriate 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 independent public accountants, containing statements and information consolidated business or financial condition since the date of the type ordinarily included Company's most recent audited financial statements contained in accountants' "comfort letters" the Disclosure Documents;
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 Investment Debentures and exercise of all of the Investment Warrants to underwriters 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 a Purchaser or Infineon to convert Investment Debentures or exercise the Investment Warrants as of such date);
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 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 respect 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 toxic or hazardous wastes or materials; and
5.1.15 the Company shall have furnished such Purchaser with (i) a current survey of the 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 Closing Date:
5.2.1 the representations and warranties of each Purchaser shall be true and correct in all material respects as of such date as if made on such date (except that to the financial statements extent that any such representation or warranty relates to a particular date, such representation or warranty shall be true and certain financial information contained correct in all respects as of that particular date);
5.2.2 each Purchaser shall have complied with or incorporated by reference into the Prospectus. [The several obligations performed all of the Underwriters agreements, obligations and conditions set forth in this Agreement that are required to purchase Additional Securities hereunder are subject to delivery to be complied with or performed by each Purchaser on or before 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 Manager on consummation of the Option transactions contemplated hereby and by the Purchaser Documents;
5.2.4 the Conversion Price (as defined in the Debentures) shall not be less than four dollars ($4.00); and
5.2.5 the Closing Date of such opinionsshall occur on a date that is not later than March 29, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwriters2002.
Appears in 1 contract
Samples: Securities Purchase Agreement (Ramtron International Corp)
Conditions to Closing. The several obligations of the Underwriters hereunder are subject to the following 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 This Agreement and prior to the Closing Date, there shall not have occurred become effective (and the Lenders shall not be required to make the initial Loans or issue 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, Letters of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(cCredit) The Manager shall have received on unless the Closing Date a certificatehas occurred on or prior to August 31, dated the Closing Date 2005 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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all furnished to the Administrative Agent each of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marburyfollowing, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs with sufficient copies for the CompanyLenders, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 all in form and substance satisfactory to the ManagerAdministrative 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 expressly permit identify by name and title and bear the Underwriters 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 thereon as if such opinion were addressed to Underwriters.until informed of any change in writing by the applicable Loan Party;
(e4) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Datecertificate, in form and substance satisfactory to the ManagerAdministrative Agent, from signed by the chief financial officer or treasurer of the Company, stating that on the Closing Date (both before and after giving effect to the Loans made and/or Letters of Credit issued thereon) all the representations in this Agreement are true and correct in 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) and no Default or Unmatured Default has occurred and is continuing;
(5) An opening compliance certificate, substantially in the form of Exhibit H attached hereto and made a part hereof, signed by the Company's independent public accountantschief financial officer or treasurer, containing statements and information but solely demonstrating compliance with the provisions of Section 7.4 as of the 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 Prospectus. [The several obligations end of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of such opinionsfiscal quarter ending May 27, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ 2005;
(6) Include Evidence satisfactory to the Administrative Agent that the Prior Credit Agreement has terminated and 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 green shoe is 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, (a) identifying and describing the ownership of the Significant Subsidiaries of the Company as of the Closing Date and (b) identifying and attaching the Investment Policy of the Company as in effect on the Closing Date; and
(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 offered 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 Underwritersthis Agreement. Without in any way limiting the foregoing, this Agreement shall not become effective unless and until it has been executed by the Company, the Administrative Agent and the Lenders, and each such party has notified the Administrative Agent by facsimile or electronic transmission that it has taken such action.
Appears in 1 contract
Samples: Credit Agreement (Steelcase Inc)
Conditions to Closing. 5.1 The several Company's Conditions to Closing. The obligations of the Underwriters hereunder are Company ----------------------------------- under this Agreement shall be subject to the following conditions:(any of which may be waived by the Company in whole or in part):
(a) No stop order suspending A definitive agreement between the effectiveness Company and Pacific evidencing the terms and conditions of the Registration Statement is in effect, and no proceedings for such purpose are pending before or threatened Pacific Transaction shall have been unanimously approved by the Commissiondisinterested directors of the Company.
(b) Subsequent to the execution and delivery Each of the Underwriting Agreement representations and prior to warranties of TVF, Third Capital, Xxxxxxx and Xxxxx shall be true and accurate in all material respects as of the Closing Date, there and each of them 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 Prospectusperformed their respective covenants hereunder.
(c) The Manager No injunction, judgment, order, decree or ruling shall have received on been entered in any action, suit or proceeding pending before any court or agency of any federal, state or local jurisdiction that prevents the Closing Date a certificateperformance of the Parties' obligations hereunder, dated including but not limited to the Closing Date purchase of the Shares contemplated by this Agreement.
5.2 TVF's, Xxxxxxx'x and signed 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 an executive officer the disinterested directors of the Company, to the effect set forth in clause .
(b) above and to the effect that Each of the representations and warranties of the Company contained in this Agreement are shall be true and correct accurate as of the Closing Date in all material respects and that the Company has complied with all of the agreements and satisfied all of the obligations on shall have performed its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedcovenants hereunder.
(dc) The Manager No injunction, judgment, order, decree or ruling shall have received on been entered in any action, suit or proceeding pending before any court or agency of any federal, state or local jurisdiction that prevents the Closing Date opinions performance of Piper & Marburythe Parties' obligations hereunder, Maryland counsel including but not limited to the Companypurchase of the Shares contemplated by this Agreement; provided, Xxxxx X. Xxxxxxhowever, Esq.that this shall not apply to any action, Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed suit or proceeding initiated by laws any Party (other than the laws of the State of California and the federal law of the United States of America, on an opinion Company) 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the 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 the 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 Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date any of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersParty's Affiliates.
Appears in 1 contract
Conditions to Closing. The several obligations of the Underwriters hereunder are subject to Closing Date shall not occur until the following conditionsconditions precedent are satisfied:
(a) No stop order suspending the effectiveness The Administrative Agent’s receipt of the Registration Statement is following, each of which shall be originals or facsimiles (followed promptly by originals), each of which shall be dated the Closing Date (or, in effectthe case of certificates of governmental officials, a recent date before the Closing Date):
(i) counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender, and no proceedings for such purpose are pending before or threatened the Borrower, executed by the CommissionAdministrative Agent, the Syndication Agent, each Lender, and the chairman or chief executive officer and president of the Borrower;
(ii) A Note executed by a Responsible Officer of the Borrower in favor of each Lender requesting such a Note, in a principal amount equal to such Lender’s Commitment;
(iii) a Secretary’s Certificate in the form of Exhibit G, signed by the Responsible Officers named therein;
(iv) Certificates evidencing the good standing of the Borrower in the states of Arkansas, Delaware, Georgia, and Ohio;
(v) a certificate signed by a Responsible Officer of the Borrower certifying (A) that there has been no change, occurrence, or development since the date of the Audited Financial Statements, which has or could be reasonably expected to have a material adverse effect on the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise), or prospects of the Borrower and its Subsidiaries taken as a whole, and (B) the current Debt Ratings (which Debt Rating must be a minimum of BBB+/Baa1 by both S&P and Xxxxx’x, respectively) and further certifying that neither rating agency has indicated that such Debt Ratings would be downgraded below BBB+/Baa1, after giving effect to the execution of the Loan Documents;
(vi) an opinion of counsel to the Borrower in the form of Exhibit H; and
(vii) such other assurances, certificates, documents, consents, or opinions, in form and substance reasonably satisfactory to the Administrative Agent, as the Administrative Agent, or the Required Lenders reasonably may require.
(b) Subsequent Any fees required to the execution and delivery of the Underwriting Agreement and prior to be paid on or before the Closing Date, there Date 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 Prospectusbeen paid.
(c) The Manager Unless waived by the Administrative Agent, the Borrower shall have received paid all attorneys’ fees and expenses of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date a certificateDate, dated plus such additional amounts of attorneys’ fees and expenses of counsel to the Closing Date and signed by an executive officer Administrative Agent as shall constitute its reasonable estimate of the Company, attorneys’ fees and expenses of counsel to the effect set forth in clause Administrative Agent incurred or to be incurred by it through the closing proceedings; provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent.
(bd) above and to the effect that the The representations and warranties of the Company Borrower contained in this Agreement are Article V shall be true and correct on and as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel after giving effect to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to UnderwritersMerger.
(e) The Manager Contemporaneously with the effectiveness of this Agreement, the Merger shall have received on been consummated in accordance with 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 (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 included if the Offered Securities are convertibleMerger Agreement.
(f) The Manager Closing Date shall have occurred on or before September 15, 2005. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received on notice from such Lender prior to the proposed 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 the 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 Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersspecifying its objection thereto.
Appears in 1 contract
Conditions to Closing. The several obligations of each Purchaser under this Agreement to purchase the Underwriters hereunder are Preferred Stock will be subject to satisfaction, on or before the Closing Date, of each of the following conditionsconditions unless waived in writing by such Purchaser:
(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 The Company shall deliver 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.
(c) The Manager shall have received on the Closing Date each Purchaser 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 contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings that are threatened.
(b) The Company shall have executed the Registration Rights Agreement.
(c) Thomxx Xxxxxxx, Xxe AER Trust 1997, Reubxx Xxxxxxxx, Xxbexx Xxxxx-Xxxxxxx xxx Gallium Enterprises, Inc. shall have executed the Tag-Along Rights Agreement, dated as of the date hereof between them and the Purchasers.
(d) The Manager Purchasers shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel from counsels to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel opinion letters addressed to the CompanyPurchasers, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance reasonably satisfactory to counsel for the Manager, from Purchasers.
(e) The Company shall deliver to such Purchaser a copy of the agreement of First Union National Bank (the "Bank") to extend the termination of the Company's independent public accountantsrevolving credit facility with the Bank beyond November 30, containing statements 1998, which agreement shall be satisfactory in form and information substance to Purchasers.
(f) The Company shall have received the Consent of the type ordinarily included in accountants' "comfort letters" to underwriters with respect Bank, and each other party whose consent is required, to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. [The several obligations use of the Underwriters proceeds of the sale of shares contemplated hereunder.
(g) The Purchasers shall have received evidence of filing of the Certificate of Designation.
(h) The Purchasers shall have agreed to purchase Additional Securities hereunder are subject to delivery to the Manager an aggregate of at least 1,550,000 shares of Preferred Stock on the Option Closing Date of such opinions, certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to UnderwritersDate.
Appears in 1 contract
Samples: Purchase Agreement (Emcore Corp)
Conditions to Closing. The several obligations of the Underwriters hereunder are --------------------- Placement Agents under this Agreement to purchase the Notes will be subject to the following 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 date of the Underwriting this Agreement and prior to the Closing Date, ,
(i) there shall not have occurred any material adverse 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 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 ProspectusPreliminary Memorandum that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Notes on the terms and in the manner contemplated in the Final Memorandum.
(cb) The Manager You shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of each member of the CompanyGroup, to the effect set forth in clause (ba)(i) above and to the effect that the representations and warranties of each member of the Company Group contained in this Agreement are true and correct in all material respects as of the Closing Date and that each member of the Company Group has complied in all material respects with all of the agreements and satisfied all of the obligations conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering any such certificate may rely upon the best of his knowledge as to proceedings threatened.
(dc) The Manager shall have received on the Closing Date opinions of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager You shall have received on the Closing Date an opinion of special Xxxxx & Xxxxxxx L.L.P. counsel for the Underwriters (the selection of whom shall be approved by the Company), dated the Closing Date, to in the effect form set forth in 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 The opinion of the United States of America, on an opinion or opinions of local counsel satisfactory to the Manager, so long as each such opinion Xxxxx & Xxxxxxx L.L.P. shall be dated rendered to you at the Closing Date and in form and substance satisfactory to the Manager, request of ITC and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters. _______________ (5) References to be included if the Offered Securities are convertibleso state therein.
(fd) The Manager You shall have received on the Closing Date a letteran opinion of Brantley & Xxxxxxxxx, P.C., Alabama communications counsel for the Company, dated the Closing Date, in the form set forth in Exhibit D. The opinion of Xxxxxxxx & Xxxxxxxxx, P.C. shall be rendered to you at the request of ITC and shall so state therein.
(e) You shall have received on the Closing Date an opinion of Stowers, Hayes, Xxxxx & Xxxxx, Georgia communications counsel for the Company, dated the Closing Date, in the form set forth in Exhibit E. The opinion of Stowers, Hayes, Xxxxx & Xxxxx shall be rendered to you at the request of ITC and shall so state therein.
(f) You shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx, General Counsel of DeltaCom, Inc., dated the Closing Date, in the form set forth in Exhibit F. The opinion of Xxxxxx Xxxxxx shall be rendered to you at the request of ITC and DeltaCom, Inc. and shall so state therein.
(g) You shall have received on the Closing Date an opinion of Shearman & Sterling, counsel for the Placement Agents, dated the Closing Date, in form and substance satisfactory to you.
(h) You shall have received on each of the Managerdate hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to you, from 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 or incorporated by reference into the Prospectus. [The several obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on the Option Closing Date of Final Memorandum.
(i) You shall have received such opinions, other certificates and documents contemplated by this Section 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersyou or your counsel may request.
Appears in 1 contract
Conditions to Closing. The several 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 a Debenture and 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 Underwriters hereunder are subject to following events as of the following conditionsInitial Closing Date:
(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.
(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 5.1.1 the representations and warranties of the Company contained set forth in this Agreement are 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 Closing Date 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 has shall have complied with or performed in all material respects all of the agreements agreements, obligations and satisfied all of conditions set forth in this Agreement and in the obligations on its part other Transaction Documents that are required to be complied with or performed or satisfied by the Company on or before the Initial Closing;
5.1.3 the Initial Closing Date. The officer signing and delivering such certificate may rely upon Date shall occur on a date that is not later than August 19, 2005;
5.1.4 the best of his knowledge as to proceedings threatened.
(d) The Manager Company shall have received on delivered to such Investor a certificate, signed by the Closing Date opinions Chief Executive Officer and Chief Financial Officer of Piper & Marbury, Maryland counsel to the Company, Xxxxx X. Xxxxxxcertifying that the conditions specified in this subparagraphs 5.1.1, Esq.5.1.2, Vice President 5.1.9, 5.1.10, 5.1.11 and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, 5.1.12 have been fulfilled as to matters governed by laws other than the laws of the State of California Initial Closing, it being understood that such Investor may rely on such certificate as though it were a representation and the federal law warranty of the United States of America, on Company made herein;
5.1.5 the Company shall have delivered to such Investor an opinion or opinions of Xxxxx Xxxx & Xxxxxxxx and Xxxxx & Xxxxxxxcounsel for the Company, and Xxxxx Xxxx & Xxxxxxxx may rely, dated 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 AmericaInitial Closing Date, on an opinion of Piper & Marbury, in each case so long as such opinion shall be dated the Closing Date and that is in form and substance satisfactory reasonably acceptable to such Investor;
5.1.6 the Company shall have delivered to such Investor duly executed certificates representing the Debenture and the Warrant being purchased by such Investor 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 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, (ii) resolutions passed by its Board of Directors, or a duly authorized committee thereof, to authorize the transactions contemplated hereby and by the other Transaction Documents and (iii) resolutions passed by the Board of Directors of the Operating Subsidiary, or a duly authorized committee thereof, to authorize the transactions contemplated by the Subsidiary Guaranty and the Security Agreement, 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 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 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;
5.1.11 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 to be issued at the Initial Closing (such number to be determined without regard to any restriction on such conversion or exercise), and provided such Investor with reasonable evidence thereof; and
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 or by the other Transaction 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 amended such financing statements) filed with respect to liens on the assets of the 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 Managerfirst lien of the Investors) on all other assets of the Company and the Operating Subsidiary, and shall expressly permit the Underwriters to rely thereon as if have provided such opinion were addressed to Underwriters.Investor with reasonable evidence thereof; and
(e) The Manager 5.1.16 counsel for Xxxxxxx Xxxxx shall have received on the Closing Date delivered to such Investor an opinion of special counsel for the Underwriters (the selection of whom shall be approved by the Company)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 Initial Closing Date:
5.2.1 the representations and warranties of such Investor set forth in paragraphs 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 (ii), (iii) and (iv) [and (vii) and (viii)](5) in Exhibit A and paragraphs (i) through (iv) in Exhibit C. In giving except that to the extent that any such opinionrepresentation or warranty relates to a particular date, such counsel may rely, representation or warranty shall be true and correct in all material respects as to matters governed by laws other than the federal law of that particular date);
5.2.2 such Investor shall have complied with or performed all of the United States 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 Americaany 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;
5.2.4 such Investor shall have executed each Initial Transaction Document to which it is a party and shall have delivered the same to the Company; and
5.2.5 such Investor shall have tendered to the Company the Purchase Price for the Debenture and Warrant being 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 local counsel satisfactory to for 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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letterCompany, dated as of the Option Closing Date, in the form attached hereto as Exhibit H hereto and substance satisfactory otherwise reasonably acceptable to such Investor;
5.3.5 the Manager, from 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 independent public accountants, containing statements and information consolidated business or financial condition since the date of the type ordinarily included Company's most recent financial statements contained in accountants' "comfort letters" 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 underwriters with respect 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 financial statements extent effective) the Contingent Guaranty shall be in full force and certain financial information contained in effect and no default, or incorporated by reference into event or occurrence that with the Prospectusgiving 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 several Company's obligations of the Underwriters to purchase Additional Securities hereunder are subject to delivery to the Manager on effect the Option Closing Date 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 opinions, certificates Investor set forth in this Agreement and documents contemplated by this Section 5 in the Transaction Documents shall be true and correct in all material respects as of such Manager shall reasonably request relating date as if made on such date (except that to the issuance 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 Additional Securities.](6) _______________ (6) Include if a green shoe is agreements, obligations and conditions set forth in this Agreement that are required to be offered 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 Underwritersthe 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. The several As a condition to the obligations of the Underwriters Purchasers hereunder are subject and prior to the following conditionsissuance of the Notes:
(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 Company shall have delivered to the execution Purchasers (in form and delivery of the Underwriting Agreement and prior substance reasonably satisfactory 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 TCW Fund V and its subsidiaries, taken as a whole, from that set forth in the Prospectus.
(ccounsel) The Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by date hereof, of the Secretary or an executive officer Assistant Secretary of the Company, (A) attaching a true and complete copy of the resolutions of the Board of Directors of the Company, and of all documents evidencing other necessary corporate or shareholder action (in form and substance reasonably satisfactory to the effect set Purchasers and to their counsel) taken by the Company in connection with the matters contemplated by this Agreement, (B) attaching a true and complete copy of the Articles, (C) setting forth in clause the incumbency of the officer or officers of the Company who sign this Agreement, and each certificate for the Securities, including therein a signature specimen of such officer or officers, and (D) attaching certificates of good standing (including tax status, if applicable) of the Delaware Secretary of State;
(b) above and the Company shall deliver to the effect that Purchasers a copy of the audited financial statements of the Company for the fiscal year ending December 31, 2002 prepared in accordance with GAAP which fairly present the information included therein, accompanied by an opinion of the Company's Independent Auditors promptly after they are available and in no event later than February 29, 2004;
(c) the Company shall deliver to the Purchasers copies of the Company's unaudited balance sheet for the fiscal quarter ended September 30, 2003, and related unaudited statements of earnings and stockholders' equity prepared in accordance with GAAP which fairly present the information included therein promptly after they are available and in no event later than February 29, 2004;
(d) the Company shall have delivered to the Purchasers in form and substance satisfactory to TCW Fund V and its counsel fully executed originals of the Registration Rights Agreement (as amended and restated), Stockholders Agreement (as amended and restated), Employment Agreement and Covenant Not to Compete;
(e) the Company shall have delivered to the Purchasers a copy of the Articles, certified by the Delaware Secretary of State;
(f) all representations and warranties of the Company contained in this Agreement are Section 3 shall be true in all material respects on and correct as of the Closing Amendment Date with the same effect as though such representations and warranties had been made on and as of the Amendment Date; the Company shall have performed in all material respects all agreements on its part required to be performed under this Agreement or any other Document on or prior to the Amendment Date; no default or Event of Default shall have occurred and be continuing; the Company shall not have consolidated with, merged into, or sold, leased, or otherwise disposed of its properties as an entirety or substantially as an entirety to any Person; and the Purchasers shall have received a certificate signed by Xx. Xxxxx, the chairman, chief executive officer and the chief financial officer dated as of the Amendment Date, certifying as to the effect specified in this paragraph;
(g) the Company shall have obtained the Senior Financing; and
(h) the Company shall have delivered to the Purchasers (in form and substance reasonably satisfactory to TCW Fund V and its counsel) such other documents, agreements, instruments, certificates and evidence relating to the matters contemplated by this Agreement as the Purchasers or their counsel shall reasonably require, including without limitation, evidence that the Company has complied with all sufficient authorized and reserved shares of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened.
(d) The Manager shall have received Common Stock on the Closing Date opinions of Piper & Marbury, Maryland counsel date hereof to the Company, Xxxxx X. Xxxxxx, Esq., Vice President and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters.
(e) The Manager shall have 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 (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 included if the Offered Securities are convertible.
(f) The Manager shall have received on the Closing Date a letter, dated the Closing Date, in form and substance satisfactory to the Manager, from meet 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 or incorporated by reference into the Prospectus. [The several obligations of the 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 5 as such Manager shall reasonably request relating to the issuance of the Additional Securities.](6) _______________ (6) Include if a green shoe is to be offered to Underwritersherein.
Appears in 1 contract
Conditions to Closing. 2.1 . The several obligations obligation of Buyer to purchase and pay for the Company Stock is subject to the satisfaction (or waiver by Buyer) as of the Underwriters hereunder are subject to Closing of the following conditions:
(a) No stop order suspending Without giving effect to any Schedule Supplement, the effectiveness (i) Fundamental Representations (other than those set forth in ARTICLE IV) made in this Agreement shall be true and correct, as of the Registration Statement is time of Closing, as though made as of such time (except to the extent such Fundamental Representations expressly relate to an earlier date, in effectwhich case such Fundamental Representations shall be true and correct on and as of such earlier date), in each case, in all respects, and no proceedings for (ii) representations and warranties of the Company made in this Agreement shall be true and correct, as of the time of the Closing as though made as of such purpose are pending before time (except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct on and as of such earlier date), in each case except where the failure to be so true and correct, individually or threatened by in the Commissionaggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on the Business of the Company.
(b) Subsequent The Company shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by the execution and delivery Company by the time 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 ProspectusClosing.
(c) The Manager Company shall have received on delivered to Buyer a certificate certifying that the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect conditions set forth in clause (bSection 2.1(a) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the obligations on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatenedSection 2.1(b) have been satisfied.
(d) The Manager Company shall have received on the Closing Date opinions of Piper & Marburydelivered to Buyer consents, Maryland counsel to the Company, Xxxxx X. Xxxxxx, Esq., Vice President authorizations and General Counsel-- Corporate Affairs for the Company, and Xxxxx Xxxx & Xxxxxxxx, special counsel to the Company, dated the Closing Date, to the effect set forth in Exhibits A, B and C, respectively. In giving such opinion, Xx. Xxxxxx may rely, as to matters governed by laws other than the laws of the State of California 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 approvals (in form and substance satisfactory acceptable to Buyer) to the Manager, transactions contemplated by this Agreement from those persons set forth on Schedule 2.1(d) and shall expressly permit from any Governmental Authority as required with respect to any Permit necessary to the Underwriters operation of the Company and the Business or to rely thereon as if such opinion were addressed to Underwritersconsummate the transaction contemplated hereby.
(e) The Manager Company shall have received on the Closing Date an opinion of special counsel delivered payoff letters for the Underwriters (the selection of whom shall be approved by the Company), dated the Closing Date, to the effect set forth in 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 all Indebtedness other than the federal law Indebtedness set forth on Schedule A-1 and Seller Transaction Expenses from the obligees thereof including the amounts necessary to pay off all Indebtedness set forth on Schedule A-1 and Seller Transaction Expenses as of the United States Closing, along with the per diem interest amount with respect thereto, if applicable, and the agreement of America, on an opinion or opinions of local counsel satisfactory to the Manager, so long as each such opinion obligee that, upon receipt of such specified amount, such Indebtedness or Seller Transaction Expenses shall be dated paid in full and the Closing Date and in form and substance satisfactory Buyer or its designee shall be authorized to release a properties or assets of the Manager, and shall expressly permit the Underwriters to rely thereon as if such opinion were addressed to Underwriters. _______________ (5) References to be included if the Offered Securities are convertibleCompany.
(f) The Manager No Legal Requirement preventing any aspect of the Transactions shall be in effect, and all required regulatory approvals shall have been obtained.
(g) There shall not have been any Material Adverse Effect since the date of this Agreement.
(h) Buyer shall have received on all of the Closing Date a letterdeliveries to be delivered to it pursuant to
(i) The Fundamental Representations set forth in ARTICLE IV made in this Agreement by each Seller shall be true and correct, dated as of the Closing Datetime of Closing, as though made as of such time (except to the extent such Fundamental Representations expressly relate to an earlier date, in form which case such Fundamental Representations shall be true and substance satisfactory correct on and as of such earlier date), in each case, in all respects.
(j) Each Seller shall have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by such Seller by the Manager, from the Company's independent public accountants, containing statements and information time of the type ordinarily included Closing.
(k) Each Seller shall have delivered to Buyer a certificate certifying that the conditions set forth in accountants' "comfort letters" to underwriters Section 2.1(i) and Section 2.1(j) have been satisfied with respect to the financial statements such Seller.
(l) The Rollover Sellers and certain financial information contained in or incorporated by reference Parent shall have entered into the ProspectusContribution Agreement, on terms and conditions reasonably acceptable in good faith to the Rollover Sellers and generally customary for minority, non-control equity investments.
(m) The Rollover Sellers and other equity holders of Parent shall have entered into an Operating Agreement for Parent on terms and conditions reasonably acceptable in good faith to the Rollover Sellers and generally customary for minority, non-control equity investments.
2.2 . [The several obligations obligation of the Underwriters Sellers to purchase Additional Securities hereunder are sell and deliver the Company Stock to Buyer is subject to delivery the satisfaction (or waiver by the Sellers) as of the Closing of the following conditions:
(a) The representations and warranties of Buyer made in this Agreement shall be true and correct, as of the date hereof and as of the time of the Closing as though made as of such time (except to the Manager extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct on the Option Closing Date and as of such opinionsearlier date), certificates in each case except where the failure to be so true and documents correct, individually or in the aggregate, has not had, and would not and sale of the Company Stock and the other transactions contemplated by this Section 5 as such Manager Agreement and the Ancillary Documents on the terms and conditions set forth herein and therein.
(b) Buyer shall reasonably request relating have performed or complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Buyer by the time of the Closing.
(c) Buyer shall have delivered to the issuance Sellers a certificate of the Additional Securities.](6Buyer certifying that the conditions set forth in Section 2.2(a) _______________ and Section 2.2(b) have been satisfied.
(6d) Include if a green shoe is No Legal Requirement preventing any aspect of the Transactions shall be in effect, and all required regulatory approvals shall have been obtained.
(e) There shall not have been any Material Adverse Effect since the date of this Agreement.
(f) Sellers shall have received all of the deliveries to be offered delivered to Underwritersthem pursuant to Section 1.5.
(g) The Rollover Sellers and Parent shall have entered into the Contribution Agreement, on terms and conditions reasonably acceptable in good faith to the Rollover Sellers and generally customary for minority, non-control equity investments.
(h) The Rollover Sellers and other equity holders of Parent shall have entered into an Operating Agreement for Parent on terms and conditions reasonably acceptable in good faith to the Rollover Sellers and generally customary for minority, non-control equity investments.
Appears in 1 contract
Samples: Stock Purchase Agreement
