Conditions to Initial Closing. The obligations of the Lender to purchase and pay for the Tranche B Notes to be delivered on the initial Closing Date are subject to the prior or concurrent satisfaction of the following conditions: (a) The Borrowers shall have duly authorized, executed and delivered to the Lender the Loan Agreement, the Notes, the Warrants, the Registration Rights Agreement and the other Transaction Documents and the documents and instruments to be delivered in connection therewith; (b) There shall exist no Default or Event of Default and all the representations and warranties contained herein and in the other Transaction Documents shall be true and correct in all respects with the same effect as though such representations and warranties had been made on such Closing Date; (c) The Lender shall have received, in form and substance satisfactory to the Lender, all releases, terminations and such other documents as the Lender may request to evidence and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements with the Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority; (d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana); (e) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that the Lender has a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation; (i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents; (ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Encumbraces); (iii) evidence of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and (iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been taken. (f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee; (g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states. (h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred; (i) The Lender shall have received an Officers Certificate of each Borrower, dated as of such Closing Date, certifying that (i) such Borrower is Solvent after giving effect to the consummation of the transactions contemplated hereby; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of the Closing Date; (iii) none of the Transaction Documents contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default shall have occurred and be continuing; (j) On such Closing Date, the Lender’s purchase of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty or, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and the Lender shall have received evidence of such compliance in form and substance satisfactory to the Lender; (k) The Borrower Representative shall have executed and delivered to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and (l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock. (m) The Lender shall have received: (i) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording; (ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request; (iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies; (iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender; (v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender); and (vi) flood certificates covering each Real Property in form and substance acceptable to the Lender, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard area, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA map. (n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”). (o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate. (p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase. (q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose. (r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder). (s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in full. (t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender. (u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement. (v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.
Appears in 2 contracts
Samples: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries Inc)
Conditions to Initial Closing. (i) The obligations obligation of the Lender Purchaser to purchase and pay for consummate the Tranche B Notes transactions contemplated hereby to be delivered on completed at the initial Closing Date are Initial Closing, including the purchase of the Initial PIPE Shares, is subject to the fulfillment, prior to or concurrent satisfaction on the Initial Closing Date, of the following conditions:
(a) 1. The Borrowers shall have duly authorized, executed and delivered to the Lender the Loan Agreement, the Notes, the Warrants, the Registration Rights Agreement and the other Transaction Documents and the documents and instruments to be delivered in connection therewith;
(b) There shall exist no Default or Event of Default and all the representations and warranties contained herein and of the Company in the other Transaction Documents Section 3(a) shall be true and correct in all material respects with as of the same date hereof and as of the Initial Closing Date as if made as of such date. The representations and warranties of the Company in Section 3(b), Section 3(d), Section 3(i) and Section 3(ee) shall be true and correct as of the date hereof and as of the Initial Closing Date as if made as of such date. The representations and warranties of the Company in Section 3(c) shall be true and correct, except for de minimis inaccuracies, as of the date hereof and as of the Initial Closing Date as if made as of such date (except for representations and warranties made as of a specified date, which shall be true and correct, except for de minimis inaccuracies, as of such specified date). All other representations and warranties of the Company in Section 3 shall be true and correct (without giving effect to any qualification as though to materiality or Material Adverse Effect contained therein) as of the date hereof and as of the Initial Closing Date as if made as of such date (except for representations and warranties made as of a specified date, which shall be true and correct as of such specified date), except where the failure of such representations and warranties had been made on such Closing Dateto be true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) would not have a Material Adverse Effect;
(c) 2. The Lender Company shall have received, in form and substance satisfactory to the Lender, all releases, terminations and such other documents as the Lender may request to evidence and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements with the Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority;
(d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including Purchaser a duly executed copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);Amended and Restated Registration Rights Agreement; and
(e) 3. The Lender Company shall have received evidenceperformed in all material respects all of its obligations hereunder required to be performed by it, and complied with the covenants hereunder applicable to it in form and substance satisfactory all material respects, at or prior to the Lender, that the Lender has a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;Initial Closing.
(ii) certified copies The obligation of requests the Company to consummate the transactions contemplated hereby to be completed at the Initial Closing, including the issuance of the Initial PIPE Shares, is subject to the fulfillment, prior to or on the Initial Closing Date, of the following conditions:
1. The representations and warranties of the Purchaser in Section 4 shall be true and correct (without giving effect to any qualification as to materiality contained therein) as of the date hereof and as of Initial Closing Date as if made as of such date (except for information or copies (Form UCC-11), or equivalent reports representations and warranties made as of a recent specified date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been taken.
(f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form true and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred;
(i) The Lender shall have received an Officers Certificate of each Borrower, dated correct as of such Closing Datespecified date), certifying that except where the failure of such representations and warranties to be true and correct (i) such Borrower is Solvent after without giving effect to any qualification as to materiality contained therein) would not reasonably be expected to prevent, materially delay or materially impair the consummation of the transactions contemplated hereby; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of the Closing Date; (iii) none of the Transaction Documents contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower and
2. The Purchaser shall have performed in all agreements and satisfied material respects all conditions which this Loan Agreement and the other Transaction Documents provide shall of its obligations hereunder required to be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default shall have occurred and be continuing;
(j) On such Closing Date, the Lender’s purchase of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty or, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuanceit, and sale of the Securities shall have complied with the covenants hereunder applicable to it in all applicable requirements of Federal and state securities lawsmaterial respects, and the Lender shall have received evidence of such compliance in form and substance satisfactory at or prior to the Lender;
(k) The Borrower Representative shall have executed and delivered to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital StockInitial Closing.
(m) The Lender shall have received:
(i) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) The obligations of each of the Company and the Purchaser to induce consummate the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) transactions contemplated hereby are subject to the extent obtainable on or fulfillment, prior to or on the Initial Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiariesthe following conditions:
1. No judgment, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lenderinjunction, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest decree or other agreements relating to possessory interestslegal restraint issued by a governmental entity shall prohibit, if any; provided, that, to or have the extent any effect of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender); and
(vi) flood certificates covering each Real Property in form and substance acceptable to the Lender, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard area, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA map.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to timerendering unachievable, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result consummation of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants hereby; and
2. A supplemental listing application with respect to purchase Common the authorization for listing on the New York Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result Exchange of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens Initial PIPE Shares shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in fullsubmitted.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.
Appears in 2 contracts
Samples: Purchase Agreement (Blue Apron Holdings, Inc.), Purchase Agreement (Sanberg Joseph N.)
Conditions to Initial Closing. The obligations obligation of EPIL to ----------------------------- effect the Lender to purchase and pay for the Tranche B Notes to be delivered on the initial Initial Closing Date are is subject to the prior or concurrent satisfaction of the following conditionsconditions unless waived by EPIL:
(ai) The Borrowers shall have duly authorized, executed and delivered to the Lender the Loan Agreement, the Notes, the Warrants, the Registration Rights Agreement and the other Transaction Documents and the documents and instruments to be delivered in connection therewith;
(b) There shall exist no Default or Event of Default and all the representations and warranties of Incara and Aeolus contained herein in this Agreement and in the other Transaction Documents Development Agreement shall be true and correct in all respects with as of the same effect date of such agreement and as though of the Initial Closing Date as if made on and as of the Initial Closing Date (except that such representations and warranties had been made on as of a specified date shall be true and correct as of such Closing Datedate);
(cii) The Lender Incara and Aeolus shall have received, in form each performed and substance satisfactory complied with all covenants and agreements required to be performed or complied with on or prior to the LenderInitial Closing Date under (x) each Transaction Document and (y) the Securities Purchase Agreement, all releasesdated as of December 21, terminations 2000 between Incara, EPIL and such other documents as EIS (the Lender may request to evidence "Prior ----- Purchase Agreement") and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements each document entered into or delivered in ------------------ connection with the Borrowers and Prior Purchase Agreement (collectively, the termination and release by it or them"Prior ----- Purchase Documents"), as the case may be, of and no material breach or ------------------ default by Incara under any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it Transactions Document or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority;
(d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);
(e) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that the Lender has a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been taken.
(f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred;
(i) The Lender shall have received an Officers Certificate of each Borrower, dated as of such Closing Date, certifying that (i) such Borrower is Solvent after giving effect to the consummation of the transactions contemplated hereby; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of the Closing Date; (iii) none of the Transaction Documents contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default Prior Purchase Document shall have occurred and be continuing;
(jiii) On such Closing DateIncara and/or Aeolus, as the Lender’s purchase of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty orcase may be, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and made the Lender shall have received evidence of such compliance closing deliveries set forth in form and substance satisfactory to the Lender;
(k) The Borrower Representative shall have executed and delivered to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock.
(m) The Lender shall have received:
(i) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the LenderSection 2(c)(i); and
(viiv) flood certificates covering each Real Property all permits, consents, approvals, licenses, orders, authorizations, registrations, declarations, filings and other actions that are required in form and substance acceptable to connection with the Lenderexecution, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard areadelivery, as determined by designation filing and/or performance of each such Real Property in a special flood hazard zone by reference to Transaction Document and the applicable FEMA map.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to certificates evidencing the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Series B Preferred Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result consummation of the transactions contemplated by this Loan Agreement hereby and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens thereby shall have been properly filed, registered, notarized obtained or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in fulltaken.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Incara Pharmaceuticals Corp)
Conditions to Initial Closing. The obligations of the Lender Investor's obligation to purchase and pay for the Tranche B Notes to be delivered ----------------------------- close on the initial Initial Closing Date are shall be subject to the fulfillment on or prior or concurrent satisfaction to the Initial Closing Date of the following conditions:
(a) The Borrowers shall have duly authorized, executed and delivered to the Lender the Loan Agreement, the Notes, the Warrants, the Registration Rights Agreement and the other Transaction Documents and the documents and instruments to be delivered in connection therewith;
(b) There shall exist no Default or Event of Default and all the representations and warranties made by the Company and the Founder contained herein and in the other Transaction Documents this Agreement shall be true and correct in all respects when made, and shall be true and correct on the Initial Closing Date with the same force and effect as though such representations and warranties if they had been made on such and as of the Initial Closing Date;.
(b) The Company and the Founder shall have performed all obligations and conditions herein required to be performed or observed by each of them on or prior to the Initial Closing Date.
(c) The Lender Investor shall have received, in form and substance satisfactory to received from the Lender, all releases, terminations and such other documents as the Lender may request to evidence and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements with the Borrowers Company and the termination Founder all items required to be delivered pursuant to Section 2.3 of this Agreement.
(d) The Company shall have obtained all consents, permits and release by it waivers deemed necessary or them, as appropriate for the case may be, of any interest in and to any assets and properties consummation of the Borrowers and each Obligor, duly authorized, executed and delivered transactions contemplated by it or each of themthis Agreement, including, but not limited to, the requisite approval of the Board of Directors and the shareholders of the Company of: (i) UCC termination statements for all UCC financing statements previously filed by it or any this Agreement; (ii) the Amendment; (iii) the issuance of them or their predecessorsthe Notes, as secured partythe Warrants, the Preferred Stock, the Conversion Shares and the Borrowers or any Obligor, as debtorother Securities; and (iiiv) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority;
(d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies consummation of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);other transactions contemplated hereby.
(e) The Lender Amendment shall have received evidence, in form and substance satisfactory to been filed with the Lender, that the Lender has a valid perfected security interest in all proper offices of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion Secretary of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any Commonwealth of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence Commonwealth of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been takenPennsylvania.
(f) The Lender An employment agreement, in the form of Exhibit F attached --------- hereto (the "Employment Agreement"), shall have received evidence of insurance been executed and loss payee endorsements delivered by and assignments of insurance proceeds as required hereunder between the Company and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;Founder.
(g) The Lender Company shall have receivedamended and restated its By-Laws, in the form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters attached hereto as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.Exhibit G. ---------
(h) The Lender Investor and all holders of Common Stock of the Company shall have received the following financial statements and information executed a Shareholders' Agreement (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen "Shareholders' Agreement"), in the form attached hereto as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred;Exhibit H. ---------
(i) The Lender Founder shall have received an Officers Certificate voted his shares of each Borrower, dated as Common Stock in favor of such Closing Date, certifying that (i) such Borrower is Solvent after giving effect one nominee to the consummation Company's Board of Directors identified by the Investor and such nominee shall have been elected as a director of the transactions contemplated hereby; Company (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of the Closing Date; (iii) none of the Transaction Documents contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default shall have occurred and be continuing;"Designated Director").
(j) On such Closing Date, The Company shall have paid the Lender’s purchase Investor's legal fees and disbursements of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it Investor's counsel related to any penalty orthis transaction, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and the Lender shall have received evidence of such compliance in form and substance satisfactory amount indicated on bills presented to the Lender;Company at the Initial Closing, in an amount not to exceed $15,000.
(k) The Borrower Representative Founder shall have executed amended his personal bank line of credit, promissory notes and delivered all other agreements evidencing loans to the Lender Founder, the Director Indemnification Agreement for proceeds of which the director nominees Founder contributed to the Company, or shall have made arrangements satisfactory to the Investor in its sole discretion that the Founder shall do so shortly after the Initial Closing, such that upon repayment of such indebtedness of the Lender in substantially Founder by the form Company through the use of Exhibit 3.1(k) hereto a portion of the Purchase Price, which the Investor hereby approves as an appropriate use of such proceeds, the Company shall have available to it an equivalent line of credit from a commercial lender and the Founder, if such lender requires, shall provide evidence that the Lender’s designees to Coachmen’s Board have guaranteed such line of Directors are covered by at least $25 million of D&O insurance; andcredit and pledged his personal assets as security for such guaranty.
(l) Coachmen and the Subsidiaries named therein The Company shall have duly authorizedadopted an employee stock option plan (the "ESOP"), executed and delivered a Pledge Agreement in the form of attached hereto as Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock.I. ---------
(m) The Lender Company shall have received:
(i) a mortgageobtained, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance made arrangements satisfactory to the LenderInvestor for obtaining shortly after the Initial Closing, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any "key-man" life insurance on the life of its Subsidiaries and the Founder in the amount of $500,000, with the Investor designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender); and
(vi) flood certificates covering each Real Property in form and substance acceptable to the Lender, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard area, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA mapbeneficiary.
(n) Coachmen and its Subsidiaries A non-disclosure agreement, in the form attached hereto as Exhibit J (the "Non-Disclosure Agreement"), shall have duly authorized, been executed and --------- delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in full.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof Company prior to the Initial Closing Dateby each current employee of the Company other than the Founder.
Appears in 1 contract
Samples: Subordinated Note and Warrant Purchase Agreement (Divicore Inc)
Conditions to Initial Closing. The obligations obligation of EPIL to effect the Lender to purchase and pay for the Tranche B Notes to be delivered on the initial Initial Closing Date are is subject to the prior or concurrent satisfaction of the following conditionsconditions unless waived by EPIL:
(ai) The Borrowers shall have duly authorized, executed and delivered to the Lender the Loan Agreement, the Notes, the Warrants, the Registration Rights Agreement and the other Transaction Documents and the documents and instruments to be delivered in connection therewith;
(b) There shall exist no Default or Event of Default and all the representations and warranties of Incara and Aeolus contained herein in this Agreement and in the other Transaction Documents Development Agreement shall be true and correct in all respects with as of the same effect date of such agreement and as though of the Initial Closing Date as if made on and as of the Initial Closing Date (except that such representations and warranties had been made on as of a specified date shall be true and correct as of such Closing Datedate);
(cii) The Lender Incara and Aeolus shall have received, in form each performed and substance satisfactory complied with all covenants and agreements required to be performed or complied with on or prior to the LenderInitial Closing Date under (x) each Transaction Document and (y) the Securities Purchase Agreement, all releasesdated as of December 21, terminations 2000 between Incara, EPIL and such other documents as EIS (the Lender may request to evidence "Prior Purchase Agreement") and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements each document entered into or delivered in connection with the Borrowers and Prior Purchase Agreement (collectively, the termination and release by it or them"Prior Purchase Documents"), as the case may be, of and no material breach or default by Incara under any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it Transactions Document or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority;
(d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);
(e) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that the Lender has a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been taken.
(f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred;
(i) The Lender shall have received an Officers Certificate of each Borrower, dated as of such Closing Date, certifying that (i) such Borrower is Solvent after giving effect to the consummation of the transactions contemplated hereby; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of the Closing Date; (iii) none of the Transaction Documents contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default Prior Purchase Document shall have occurred and be continuing;
(jiii) On such Closing DateIncara and/or Aeolus, as the Lender’s purchase of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty orcase may be, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and made the Lender shall have received evidence of such compliance closing deliveries set forth in form and substance satisfactory to the Lender;
(k) The Borrower Representative shall have executed and delivered to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock.
(m) The Lender shall have received:
(i) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the LenderSection 2(c)(i); and
(viiv) flood certificates covering each Real Property all permits, consents, approvals, licenses, orders, authorizations, registrations, declarations, filings and other actions that are required in form and substance acceptable to connection with the Lenderexecution, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard areadelivery, as determined by designation filing and/or performance of each such Real Property in a special flood hazard zone by reference to Transaction Document and the applicable FEMA map.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to certificates evidencing the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Series B Preferred Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result consummation of the transactions contemplated by this Loan Agreement hereby and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens thereby shall have been properly filed, registered, notarized obtained or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in fulltaken.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Incara Pharmaceuticals Corp)
Conditions to Initial Closing. The obligations Obligations of the Lender to purchase and pay for the Tranche B Notes to be delivered on the initial Closing Date Purchaser under this Agreement are subject to the satisfaction (or waiver by the Purchaser) on or prior or concurrent satisfaction to the Initial Closing Date of the following additional conditions:
(a) The Borrowers shall have duly authorized, executed and delivered to the Lender the Loan Agreement, the Notes, the Warrants, the Registration Rights All legal matters in connection with this Agreement and the other Transaction Documents and transaction contemplated hereby shall be acceptable to the documents and instruments to be delivered Purchaser in connection therewith;its sole discretion.
(b) There shall exist no Default or Event of Default and all the representations and warranties contained herein and in the other Transaction Documents shall be true and correct in all respects with the same effect as though such representations and warranties had been made on such Closing Date;
(c) The Lender Seller shall have receivedobtained all necessary consents, approvals and permits from all federal and state regulatory agencies, governmental authorities and from any other Persons, in form and substance satisfactory to the LenderPurchaser in its sole discretion, the Purchaser shall have received copies of all releasessuch consents, terminations approvals and permits, and such other documents as consents, approvals and permits shall be in full force and effect on the Lender may request to evidence and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements with the Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured partyInitial Closing Date, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds Purchaser shall have received a certificate to secure debt that effect signed by the Borrowers President or any Obligor a Vice President of the Seller.
(c) The Seller shall have performed all agreements and covenants required by this Agreement and by the other Production Payment Documents to be performed by the Seller and all representations and warranties herein and in favor the other Production Payment Documents made by the Seller shall be true and correct as of itthe Initial Closing Date, in form acceptable for recording with and the appropriate Governmental Authority;Purchaser shall have received a certificate to that effect signed by the President or a Vice President of the Seller.
(d) All requisite corporate action The Seller shall have executed and proceedings delivered this Agreement, the Conveyance in connection substantially the form set forth in Exhibit B hereto together with this Loan Agreement letters in lieu of transfer orders addressed to each purchaser of any Production Payment Hydrocarbons, and the all other Transaction Documents shall be satisfactory Production Payment Documents, all in form and substance acceptable to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested Purchaser in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);sole discretion.
(e) The Lender Purchaser shall have received evidencean Indenture Release from the Senior Secured Trustee relating to the Subject Interests and related UCC-3 financing statement partial releases, in form and substance acceptable to the Purchaser in its sole and absolute discretion.
(f) The Purchaser shall have received approval of the transaction contemplated in this Agreement and the other Production Payment Documents from the Purchaser's senior management.
(g) The Purchaser shall have received, at Seller's expense, favorable opinions of counsel licensed to practice in each of the States in which the Subject Interests are located and which is satisfactory to the Purchaser, respectively, in form and substance satisfactory to the Lender, that the Lender has a valid perfected security interest Purchaser in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;its sole discretion which:
(i) proper financing statements (Form UCC-1 or will deliver an opinion as to the equivalentmatters set forth in Sections 3(a), 3(b), 3(c) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documentsand 3(d) hereof;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in will express the jurisdictions referred author's opinion with respect to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies sufficiency under the laws of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any State of the Collateral except to form, execution, acknowledgment, recordability, validity and enforceability of the extent evidencing Permitted Encumbraces)Conveyance and the other Production Payment Documents;
(iii) evidence will state that the Seller has Defensible Title to those of the completion Subject Interests listed on Exhibit A hereto and located in such State, free of any liens, charges or encumbrances other than those described in Exhibit A to the Conveyance and that all other filings and recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended Purchaser's title to the Subject Interests and to give constructive notice to third parties of the Purchaser's interest therein have been made;
(iv) will state that, under the laws of such State, upon execution and delivery of the Conveyance to the Purchaser, the Production Payment will have been validly created and will constitute a legal and valid interest in real property, enforceable in accordance with its terms; upon execution and delivery of the Conveyance to the Purchaser, the Production Payment will constitute a legal, valid and enforceable production payment dischargeable out of the volumes specified in the Conveyance of the production of Hydrocarbons accruing or attributable to the Subject Interests; upon execution and delivery of the Conveyance to the Purchaser, the covenants and agreements of the Seller contained in the Conveyance will be created valid and enforceable in accordance with their terms and will inure to the benefit of the Purchaser as the owner of the Production Payment; in the event of the commencement of any bankruptcy reorganization, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency laws involving the Seller, the property interest and the production payments transferred by the Transaction DocumentsSeller prior to any such commencement shall be excluded from the bankruptcy estate;
(v) will specify whether, under the laws of such State, any mortgage, documentary, stamp or other taxes will be payable in connection with the execution, delivery or recording of the Conveyance or any of the transactions contemplated thereby; will specify in which recording offices in such State the Conveyance should be recorded or filed in order to effect the transfer of the Production Payment to the Purchaser and that upon such filing or recording, the Purchaser will be the owner of such Production Payment, subject only to the matters permitted by the terms of the Conveyance;
(vi) will state that no consents, waivers, approvals or other action by any regulatory body of the respective State or of any third party are necessary in connection with the execution, delivery and performance by the Seller of this Agreement and the other Production Payment Documents or, if any such consent, waiver, approval or other action is necessary, that the same has been obtained or accomplished; and
(ivvii) evidence will state that all other actions necessary orthe consummation of this transaction and the delivery of this Agreement and the conveyance is permitted by, in and does not violate, the opinion terms of the Lender, desirable to perfect and protect the security interests purported to Trust Indentures. which opinions may contain such qualifications or limitations as may be created by the Transaction Documents have been taken.
(f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory acceptable to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such statesPurchaser.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred;[Intentionally omitted].
(i) The Lender Purchaser shall have received an Officers Certificate reserve reports and completed a Phase I environmental review satisfactory to the Purchaser, in its sole discretion, and, if requested by Purchaser, Purchaser shall have received a Phase II environmental report, relating to the Subject Interests, prepared by Carr Environmental Group, Inc., in form, substance, scope and methodology satisfactory to the Purchaser and, since the date of each Borrowerreport, dated as of there has been no material change in the information contained in each such Closing Date, certifying that (i) such Borrower is Solvent after giving effect to the consummation of the transactions contemplated hereby; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of the Closing Date; (iii) none of the Transaction Documents contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default shall have occurred and be continuing;report.
(j) On such Closing DateNo suit, action or other proceeding shall be pending to restrain, enjoin or otherwise prevent the Lender’s purchase consummation of this Agreement or the Securities shall not be prohibited by transactions contemplated in connection herewith or which may have any applicable law or governmental regulation and shall not subject it to any penalty or, in material affect on the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and the Lender shall have received evidence of such compliance in form and substance satisfactory to the Lender;Subject Interests.
(k) The Borrower Representative Purchaser shall have executed received banking references and delivered credit and other due diligence relating to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen Seller and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock.
(m) The Lender shall have received:
(i) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture FilingsSubject Interests, in form form, substance, scope and substance methodology satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”)Purchaser, in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender); and
(vi) flood certificates covering each Real Property in form and substance acceptable to the Lender, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard area, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA mapsole discretion.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in full.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.
Appears in 1 contract
Conditions to Initial Closing. (i) The obligations Company's obligation to complete the purchase and sale of the Lender to purchase Initial Shares and pay for the Tranche B Notes to be delivered Initial Warrant on the initial Initial Closing Date are shall be subject to the prior or concurrent satisfaction accuracy on the date hereof, in all material respects, of the representations and warranties made by each Purchaser in Section 6 hereof; and
(ii) Each Purchaser's obligation to accept delivery of the Initial Shares and the Initial Warrant, and to pay the Initial Purchase Price, allocated to such Purchaser pursuant to Section 1 hereof shall be subject to the following conditions:
(aA) The Borrowers shall have duly authorized, executed and delivered to the Lender delivery of the Loan Agreement, the Notes, the Warrants, the Registration Rights Agreement Initial Shares and the other Transaction Documents and Initial Warrant allocated to each Purchaser pursuant to Section 1 hereof by the documents and instruments Company to be delivered in connection therewithsuch Purchaser as contemplated by Section 2(a) hereof;
(bB) There shall exist no Default or Event the accuracy on the Initial Closing Date of Default and all the representations and warranties contained herein and made by the Company in Section 5 hereof qualified as to materiality, the other Transaction Documents shall be true and correct in all respects with accuracy on the same effect as though such Initial Closing Date of the representations and warranties had been made by the Company in Section 5 hereof not qualified as to materiality, other than Section 5(j) hereof, in all material respects, and the accuracy of the representation on such the Initial Closing DateDate of the representations and warranties made by the Company in Section 5(j) hereof;
(cC) The Lender shall have received, in form and substance satisfactory to the Lender, all releases, terminations and such other documents as approval of the Lender may request to evidence and effectuate transactions contemplated hereby by the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers Company's Board of their respective financing arrangements with the Borrowers Directors and the termination and release by it or them, as the case may be, continuing effect of any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authoritysuch approval;
(dD) All requisite corporate action the delivery to each Purchaser of a certificate, dated the Initial Closing Date and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested duly executed by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy duly authorized officer of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);
(e) The Lender shall have received evidenceCompany, in form and substance satisfactory to the Lendercertifying, that the Lender has a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been taken.
(f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and Company, as to such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen approval and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurredcontinuing effect;
(iE) The Lender shall have received an Officers Certificate of each Borrower, dated as of such Closing Date, certifying that (i) such Borrower is Solvent after giving effect to the consummation listing of the transactions contemplated hereby; (ii) Purchased Shares and the representations and warranties in Section 6 shares of this Loan Agreement are true, correct and complete on and as Common Stock issuable upon exercise of any of the Closing Date; Warrants upon the NYSE (iiior, as may be applicable, upon each national securities exchange or automated quotation system, if any, upon which shares of Common Stock are then listed) none (subject to official notice of the Transaction Documents contains any untrue statement issuance upon exercise of a material fact or omits a material fact necessary Warrant), all costs and expenses incurred in connection with such listing to make the statements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing been paid by the Borrower Representative and the Lender; and (v) no Default or Event of Default shall have occurred and be continuingCompany;
(jF) On such Closing Date, the Lender’s purchase delivery to each Purchaser of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty or, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and the Lender shall have received evidence of such compliance in form and substance satisfactory to the Lender;
(k) The Borrower Representative shall have executed and delivered to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement registration rights agreement in the form of Exhibit 3.1(l) (as amendedB annexed hereto, modified or supplemented from time to time, dated the “Pledge Agreement”) Initial Closing Date and shall have delivered to the Lender all duly executed by a duly authorized officer of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock.
(m) The Lender shall have received:
(i) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender"Registration Rights Agreement"); and
(viG) flood certificates covering each Real Property in form and substance acceptable to An opinion, dated the LenderClosing Date, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard areaof Xxxxxxx Xxxx Attorneys LLP, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA map.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in full.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.C.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Rent Way Inc)
Conditions to Initial Closing. The obligations of the Lender Investor's obligation to purchase and pay for the Tranche B Notes to be delivered ----------------------------- close on the initial Initial Closing Date are shall be subject to the fulfillment on or prior or concurrent satisfaction to the Initial Closing Date of the following conditions:
(a) The Borrowers shall have duly authorized, executed and delivered to the Lender the Loan Agreement, the Notes, the Warrants, the Registration Rights Agreement and the other Transaction Documents and the documents and instruments to be delivered in connection therewith;
(b) There shall exist no Default or Event of Default and all the representations and warranties made by the Company and the Founder contained herein and in the other Transaction Documents this Agreement shall be true and correct in all respects when made, and shall be true and correct on the Initial Closing Date with the same force and effect as though such representations and warranties if they had been made on such and as of the Initial Closing Date;.
(b) The Company and the Founder shall have performed all obligations and conditions herein required to be performed or observed by each of them on or prior to the Initial Closing Date.
(c) The Lender Investor shall have received, in form and substance satisfactory to received from the Lender, all releases, terminations and such other documents as the Lender may request to evidence and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements with the Borrowers Company and the termination Founder all items required to be delivered pursuant to Section 2.3 of this Agreement.
(d) The Company shall have obtained all consents, permits and release by it waivers deemed necessary or them, as appropriate for the case may be, of any interest in and to any assets and properties consummation of the Borrowers and each Obligor, duly authorized, executed and delivered transactions contemplated by it or each of themthis Agreement, including, but not limited to, the requisite approval of the Board of Directors and the shareholders of the Company of: (i) UCC termination statements for all UCC financing statements previously filed by it or any this Agreement; (ii) the Amendment; (iii) the issuance of them or their predecessorsthe Notes, as secured partythe Warrants, the Preferred Stock, the Conversion Shares and the Borrowers or any Obligor, as debtorother Securities; and (iiiv) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority;
(d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies consummation of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);other transactions contemplated hereby.
(e) The Lender Amendment shall have received evidence, in form and substance satisfactory to been filed with the Lender, that the Lender has a valid perfected security interest in all proper offices of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion Secretary of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any Commonwealth of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence Commonwealth of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been takenPennsylvania.
(f) The Lender Company shall have received evidence paid the Investor's legal fees and disbursements of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory Investor's counsel related to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred;
(i) The Lender shall have received an Officers Certificate of each Borrower, dated as of such Closing Date, certifying that (i) such Borrower is Solvent after giving effect to the consummation of the transactions contemplated hereby; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of the Closing Date; (iii) none of the Transaction Documents contains any untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default shall have occurred and be continuing;
(j) On such Closing Date, the Lender’s purchase of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty ortransaction, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and the Lender shall have received evidence of such compliance in form and substance satisfactory amount indicated on bills presented to the Lender;
(k) The Borrower Representative shall have executed and delivered to Company at the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital StockInitial Closing.
(m) The Lender shall have received:
(i) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender); and
(vi) flood certificates covering each Real Property in form and substance acceptable to the Lender, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard area, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA map.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in full.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.
Appears in 1 contract
Samples: Subordinated Note and Warrant Purchase Agreement (Divicore Inc)
Conditions to Initial Closing. The obligations Unless this Agreement is earlier terminated in accordance with Article VII, closing of the Lender transactions set forth in Section 2.1(b) (the “Initial Closing”) shall take place on the second (2nd) Business Day following satisfaction or waiver (to purchase and pay for the Tranche B Notes extent permitted by applicable law) of each of the conditions set forth in this Section 2.1(a) (other than those conditions that by their nature are to be delivered on satisfied at the initial Closing Date are Initial Closing, but subject to the prior fulfillment or concurrent satisfaction waiver of those conditions), or such other date as agreed by the following conditions:Parties; provided, that the Parties agree that in no event shall the Initial Closing occur before January 3, 2022. The date on which the Initial Closing actually occurs is hereinafter referred to as the “Initial Closing Date”.
(ai) The Borrowers Purchaser Board (A) shall have duly authorized, executed (1) approved and delivered to the Lender the Loan declared advisable this Agreement, the NotesAncillary Agreement, the WarrantsTransactions and the Ancillary Transactions, including but not limited to the Registration Rights S-4/Proxy Statement and the filing thereof with the SEC, (2) determined that this Agreement and the Ancillary Agreements and the Transactions and the Ancillary Transactions are in the best interests of the Purchaser and its stockholders, and (3) resolved to recommend approval of this Agreement and the other Transaction Documents Required Approval Matters by the Purchaser Common Stockholders, and (B) shall not have rejected, withdrawn or otherwise modified the approval, declaration and resolution referenced in the foregoing clause (A).
(ii) The Parties shall have agreed on the form of all documents and instruments agreements and other matters which are required to be delivered mutually agreed by the Parties prior to the Initial Closing as set forth in connection therewiththis Agreement;
(biii) There The Seller shall exist have delivered Annex I and the Seller Disclosure Letter to Purchaser at least five (5) Business Days prior to the Initial Closing Date, but in no Default event prior to ten (10) Business Days after the Agreement Date.
(iv) The Purchaser shall have delivered the Purchaser Disclosure Letter to Seller at least five (5) Business Days prior to the Initial Closing Date, but in no event prior to ten (10) Business Days after the Agreement Date.
(v) The Purchaser shall have received each of the certificates, instruments, signature pages, and other items described under Section 2.1(c).
(vi) The Seller shall have received each of the certificates, instruments, signature pages, and other items described under Section 2.1(d).
(vii) The AP Assets shall be owned by the AiPharma Companies.
(viii) The Loan Documents shall be amended in accordance with Annex II hereto.
(ix) The Company’s outstanding equity interests shall be owned 100% by the Seller, and there shall be no options, warrants, subscriptions, puts, calls, exchangeable or Event convertible securities, or other similar rights, agreements, arrangements or commitments relating to the equity interests in the Company.
(x) Citing IRM Part 3.13.2.27.9 (01-01-2022), Request to Withdraw Classification Election, each of Default the Company and AiPharma Development shall have sent to the IRS, prior to December 31, 2021, a request (together, the “Requests”) to withdraw/rescind its respective Entity Classification Election. For the avoidance of doubt, (A) the Company and AiPharma Development shall have only sent the Requests, (B) none of the Seller, the Company or AiPharma Development represents, warrants, or covenants as to the effect of the Requests, and (C) the condition in this Section 2.1(a)(x) shall be satisfied upon the sending of the Requests to the IRS, regardless of any response to, or consequences or implications of, the Requests.
(xi) The obligation of the Purchaser to consummate the Initial Closing is subject to the satisfaction, or the waiver by the Purchaser at its sole and absolute discretion, of all the following further conditions: (A) the Purchaser’s Board shall have received an opinion from its financial advisor, dated as of the date thereof, to the effect that, as of such date and based upon and subject to the factors, qualifications, assumptions, limitations and other matters set forth therein, the consideration to be paid by the Purchaser under this Agreement for the assets to be received by the Purchaser under this Agreement is fair, from a financial point of view, to the Purchaser’s stock holders; (B) the Seller shall have duly performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Initial Closing; (C) the Company shall have kept the Purchaser reasonably apprised with respect to the status of its negotiations with, and due diligence on, the Target, and shall have provided the Purchaser with copies of such documents and with such information regarding the Target as reasonably requested by the Purchaser; (D) the representations and warranties contained herein and of the Seller set forth in the first sentence of Section 3.1(a) (other Transaction Documents than with respect to good standing) (Existence), Section 3.2 (Authorization), and Section 3.5 (AiPharma Companies) shall be true and correct in all respects with as of the same effect Initial Closing Date, as though made on and as of the Initial Closing Date (except that representations and warranties that speak as of a specified date or time shall have been true and correct only as of such date or time), and (ii) all other representations and warranties of the Seller contained in this Agreement and in any certificate delivered by the Seller pursuant hereto shall be true and correct as of the Initial Closing Date, as though made on and as of the Initial Closing Date (except that representations and warranties that speak as of a specified date or time shall have been true and correct only as of such date or time), except where the failure of such representations and warranties had been made on such Closing Date;
(c) The Lender shall have received, in form and substance satisfactory to the Lender, all releases, terminations and such other documents as the Lender may request to evidence and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements with the Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority;
(d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers so true and correct (without regard to qualification or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);
(eexceptions contained therein as to “materiality” or “AiPharma Xxxxx Xxxxxxxx Adverse Effect”) The Lender shall have received evidencewould not reasonably be expected to have, in form and substance satisfactory to the Lender, that the Lender has a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 individually or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of aggregate, an AiPharma Xxxxx Xxxxxxxx Adverse Effect; (E) since the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Agreement Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been taken.
(f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material AiPharma Xxxxx Xxxxxxxx Adverse Effect shall have occurred;occurred and be continuing; (F) all diligence items that the Purchaser has requested from the Company prior to the date hereof will have been delivered, in a form reasonably satisfactory, to the Purchaser; and (G) the Seller shall have delivered the AiPharma Financial Statements to the Purchaser.
(ixii) The Lender obligations of the Seller to consummate the Initial Closing is subject to the satisfaction, or the waiver by the Seller at its sole and absolute discretion, of all of the following further conditions: (A) the Purchaser shall have received an Officers Certificate performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Initial Closing Date; (B) the representations and warranties of each Borrowerthe Purchaser set forth in the first sentence of Section 4.1(a) (other than with respect to good standing) (Existence) and Section 4.2 (Authorization) shall be true and correct in all respects as of the Initial Closing Date, dated as though made on and as of the Initial Closing Date (except that representations and warranties that speak as of a specified date shall have been true and correct only as of such Closing Datedate), certifying that (i) such Borrower is Solvent after giving effect to the consummation of the transactions contemplated hereby; (ii) the representations and warranties of the Purchaser set forth in Section 6 4.6 (Capitalization) shall be true and correct in all but de minimis respects as of this Loan Agreement are truethe Initial Closing Date, correct and complete as though made on and as of the Initial Closing Date; Date (except that representations and warranties that speak as of a specified date shall have been true and correct only as of such date), and (iii) none all other representations and warranties of the Transaction Documents contains Purchaser contained in this Agreement and in any untrue statement certificate delivered by the Purchaser pursuant hereto shall be true and correct as of the Initial Closing Date, as though made on and as of the Initial Closing Date (except that representations and warranties that speak as of a material fact or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower specified date shall have performed all agreements been true and satisfied all conditions which this Loan Agreement correct only as of such date), except where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality” or “Purchaser Material Adverse Effect”) would not reasonably be expected to have, individually or in the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lenderaggregate, a Purchaser Material Adverse Effect; and (vC) since the Agreement Date, no Default or Event of Default Purchaser Material Adverse Effect shall have occurred and be continuing;
(j) On such Closing Date, the Lender’s purchase of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty or, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and the Lender shall have received evidence of such compliance in form and substance satisfactory to the Lender;
(k) The Borrower Representative shall have executed and delivered to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock.
(mxiii) The Lender No Authority of competent jurisdiction shall have received:
(iA) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Propertyenacted, issued by a title insurer satisfactory to or promulgated any currently effective Law that has the Lender effect of making the Transactions illegal or which has the effect of prohibiting or otherwise preventing the consummation thereof, or (B) issued or granted any currently effective Order that has the “Title Company”), in an insured amount satisfactory to effect of making the Lender and insuring Transactions illegal or that has the Lender that effect of prohibiting or otherwise preventing the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender); and
(vi) flood certificates covering each Real Property in form and substance acceptable to the Lender, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard area, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA mapconsummation thereof.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in full.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.
Appears in 1 contract
Conditions to Initial Closing. (a) Conditions to the Obligations of Parent, Newco and the Investors. The obligations of Parent, Newco and the Lender Investors to purchase and pay for consummate the Tranche B Notes to be delivered on transactions contemplated by Section 1.1 at the initial Initial Closing Date are subject to the prior or concurrent satisfaction of the following conditions:
(a) The Borrowers shall have duly authorized: no ruling, executed and delivered to the Lender the Loan Agreementorder, the Notesinjunction, the Warrantsdecree, the Registration Rights Agreement and the other Transaction Documents and the documents and instruments to be delivered in connection therewith;
(b) There shall exist no Default statute, rule or Event of Default and all the representations and warranties contained herein and in the other Transaction Documents shall be true and correct in all respects with the same effect as though such representations and warranties had been made on such Closing Date;
(c) The Lender shall have received, in form and substance satisfactory to the Lender, all releases, terminations and such other documents as the Lender may request to evidence and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements with the Borrowers and the termination and release by it or them, as the case may be, regulation of any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority;
(d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents governmental authority shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);
(e) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that the Lender has a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been taken.
(f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred;
(i) The Lender shall have received an Officers Certificate of each Borrower, dated as of such Closing Date, certifying that (i) such Borrower is Solvent after giving effect to prevent the consummation of the transactions contemplated hereby; provided, however, that the parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.
(iib) Conditions to the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as Obligations of the Investors. The obligations of each Investor to consummate the transactions contemplated by Section 1.1 at the Initial Closing Date; (iii) none of are subject to the Transaction Documents contains any untrue statement of a material fact satisfaction or omits a material fact necessary to make the statements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it waiver, on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default shall have occurred and be continuing;
(j) On such Initial Closing Date, the Lender’s purchase of the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty or, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and the Lender shall have received evidence of such compliance in form and substance satisfactory to the Lender;
(k) The Borrower Representative shall have executed and delivered to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock.
(m) The Lender shall have receivedfollowing additional conditions:
(i) Representations, Warranties and Covenants of Parent. The representations and warranties of Parent set forth in Section 4 of this Agreement shall be true and correct in all material respects as of the date when made and (unless made as of a mortgagespecified date) as of the Initial Closing Date; provided, leasehold mortgagehowever, deed that if any of trustthe representations and warranties are already qualified in any respect by materiality or as to Material Adverse Effect, leasehold deed such representation or warranty shall be true and correct as of trustsuch dates in all respects (i.e., deed as written); and Parent shall have performed, and shall have caused Newco to secure debt perform, in all material respects their respective covenants set forth in this Agreement to be performed prior to or leasehold deed at the Initial Closing; provided, however, that if any of the covenants are already qualified in any respect by materiality or as to secure debt Material Adverse Effect, such covenant shall have been performed in substantially the form all respects (i.e., as written); and neither Parent nor Newco shall have taken any action which would violate any provision of Exhibit 3.1(m) Newco's LLC Operating Agreement (as amendeddefined below) or this Agreement, modified or supplemented from time to time, as the “Mortgage”) with local law changes, duly executedcase may be, and corresponding UCC Fixture Filingsat the Initial Closing Parent shall deliver to each Investor an officer's certificate, dated the Initial Closing Date and duly executed by an executive officer, certifying as to Parent's compliance with the conditions set forth in form this clause (i) and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
in clauses (ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any of its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be in form and substance reasonably satisfactory to the Lender;
(v) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender); and
(vi) flood certificates covering each Real Property in form and substance acceptable to the Lender, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard area, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA map.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”viii), duly executed(xiii), with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreementxiv), in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the transactions contemplated by this Loan Agreement (including without limitation the purchase of the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrantsxv) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined thereinxviii), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the Lender, evidence that such amendment has become effective to accomplish such purpose.
(r) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the parties to the Change of Control Agreements shall have waived their rights under any of the Change of Control Agreements as a result of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(s) Any document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in full.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the Rxxxxxxxxx Financing Authority and the Franklin Development Authority providing for the removal of all the liens securing such bonds and the letters of credit supporting them and the return of the excess cash serving as collateral therefor to bank accounts subject to a valid Deposit Account Control Agreement.
(v) The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Borrower Representative have agreed will be surrendered for the cash surrender value thereof prior to the Closing Date.;
Appears in 1 contract
Samples: Investment Agreement (Motient Corp)
