Conditions to Subsequent Closings. The obligations of the Lender to purchase and pay for Revolving Loans to be delivered on each Closing Date subsequent to the initial Closing are subject to the prior or concurrent satisfaction of the following conditions: (a) 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; (b) The Lender shall have received an Officer’s Certificate of each Borrower, dated as of such subsequent Closing Date substantially in the form of Exhibit 2.1(a) hereto, certifying that (i) such Borrower is Solvent after giving effect to such funding; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of such subsequent Closing Date; (iii) on and as of such subsequent Closing Date, none of the Transaction Documents contains any untrue statement of a material fact or omit a material fact necessary to make the statements therein not misleading; (iv) the Borrower has 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 subsequent 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 on such subsequent Closing Date ; (c) On and as of such subsequent Closing Date , the Lender’s loans hereunder or exercise of any rights herein or in any Transaction Document shall not have become 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; (d) Prior to such subsequent Closing Date , the Lender shall have received the following financial statements and information: (i) if Coachmen is required to file period reports pursuant to the Exchange Act as of such subsequent Closing Date , (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect to such Revolving Loan, as of such subsequent Closing Date , prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lender; and (B) estimated unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the interim period between Coachmen’s most recent financial statements filed pursuant to the Exchange Act and the last day of the month immediately preceding such subsequent Closing Date ; or (ii) if Coachmen is not required to file period reports pursuant to the Exchange Act as of such subsequent Closing Date, (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect to the Revolving Loan to occur on such subsequent Closing Date, prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lender; (B) the audited consolidated balance sheet of Coachmen and its consolidated Subsidiaries as of the last day of the fiscal year immediately preceding such subsequent Closing Date (or if such subsequent Closing Date is prior to April 1st of any year, the fiscal year prior to such fiscal year immediately preceding such subsequent Closing Date) and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for such fiscal year; and (C) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the fiscal quarter immediately preceding such subsequent Closing Date. As of such subsequent Closing Date, no Material Adverse Effect shall have occurred since December 31, 2008; (e) The Lender shall have received an updated Perfection Certificate, dated as of such subsequent Closing Date, in form and substance satisfactory to the Lender, which shall confirm that as of such subsequent Closing Date, the Lender continues to have a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances; (f) The Lender shall have received the remaining Closing Fee of $200,000; (g) On the Closing Date, the conditions in Section 3.1 shall have been satisfied.
Appears in 2 contracts
Samples: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries Inc)
Conditions to Subsequent Closings. (a) The respective obligations of each of the Lender Investor and the Company to purchase and pay for Revolving Loans to be delivered on each Closing Date subsequent to the initial consummate a Subsequent Closing are subject to the fulfillment or written waiver by the Investor and the Company prior or concurrent satisfaction to such Subsequent Closing of the following conditions:
(ai) The Lender all approvals and authorizations of, filings and registrations with, and notifications to, or expiration or termination of any applicable waiting period, under the HSR Act or competition or merger control laws of other jurisdictions, required to consummate such Subsequent Closing shall have received, been obtained or made and shall be in form full force 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 effect;
(ii) satisfactions and discharges no provision of any mortgagesapplicable law or regulation and no judgment, deeds injunction, order or decree shall prohibit such Subsequent Closing or shall prohibit or restrict the Investor from owning or voting any Securities and no lawsuit has been commenced by a Governmental Entity seeking to effect any of trust the foregoing;
(iii) all Insurance Regulatory Approvals shall have been obtained or deeds made and shall be in full force and effect, or the Investor and the Company shall have entered into mutually agreed alternative arrangements (such as the delivery of Securities into a voting trust) permitting such Subsequent Closing to secure debt by occur pending receipt of Insurance Regulatory Approvals; and
(iv) the Borrowers Common Shares to be issued in such Subsequent Closing pursuant to this Agreement and any Reset Shares, following the approval of the shareholders pursuant to Section 4.2 (“Shareholder Approval”), if required in connection with such Subsequent Closing, shall have been authorized for listing on the NYSE or any Obligor in favor such other market on which the Common Shares are then listed or quoted, subject to official notice of it, in form acceptable for recording with the appropriate Governmental Authority;issuance.
(b) The Lender shall have received an Officer’s Certificate obligation of the Investor to consummate a Subsequent Closing is also subject to the fulfillment or written waiver prior to such Subsequent Closing of each Borrower, dated as of such subsequent Closing Date substantially in the form of Exhibit 2.1(a) hereto, certifying that following conditions:
(i) such Borrower is Solvent after giving effect to such funding; (ii) the representations and warranties of the Company set forth in Section 6 this Agreement shall have been true and correct on the date of this Loan Agreement are truethe Drawdown Notice and as of the Subsequent Closing Date, correct and complete as though made on and as of the Subsequent Closing Date (except to the extent such subsequent representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such date), except where the failure to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein), individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; and the Investor shall have received a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to such effect;
(ii) the Company shall have performed in all material respects all covenants, agreements and obligations required to be performed by it under this Agreement on or prior to the Subsequent Closing Date; and the Investor shall have received a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to such effect;
(iii) on the Registration Statement (as defined below) shall have become effective under the U.S. Securities Act of 1933, as amended (the “Securities Act”) and as of such subsequent Closing Date, none no stop order suspending the effectiveness of the Transaction Documents contains any untrue statement Registration Statement shall be in effect under the Securities Act and no proceedings for that purpose shall have be pending or, to the knowledge of a material fact the Company, contemplated or omit a material fact necessary to make threatened by the statements therein not misleading; U.S. Securities and Exchange Commission (the “Commission”);
(iv) the Borrower has performed all agreements and satisfied all conditions which this Loan Agreement and subsidiaries of the other Transaction Documents provide shall be performed or satisfied by it on or before such subsequent Closing Date except as otherwise disclosed to and agreed to in writing by Company identified below having the Borrower Representative and the Lender; and following financial strength ratings, with a minimum of a stable outlook: Assured Guaranty Corp. Aaa AAA AAA Assured Guaranty Re Ltd. Aa2 AA AA
(v) no Default since the date of this Agreement, a Change of Control shall not have occurred; and
(vi) certification by the Company’s Chief Executive Officer and Chief Financial Officer that since the Company’s most recent Quarterly Report on Form 10-Q or Event Annual Report on Form 10-K there has not occurred a material adverse change in the credit quality of Default shall have occurred the Company’s insurance and be continuing on such subsequent Closing Date ;reinsurance financial guarantee portfolio or investment portfolio.
(c) On and as The obligation of such subsequent the Company to consummate a Subsequent Closing Date , is also subject to the Lender’s loans hereunder fulfillment or exercise of any rights herein or in any Transaction Document shall not have become prohibited written waiver 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;
(d) Prior Company prior to such subsequent Subsequent Closing Date , the Lender shall have received of the following financial statements and informationconditions:
(i) if Coachmen is required to file period reports pursuant the representations and warranties of the Investor set forth in this Agreement shall have been true and correct on the date of the Drawdown Notice and as of the Subsequent Closing Date as though made on and as of the Subsequent Closing Date (except to the Exchange Act extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such subsequent Closing Date , (A) an estimated unaudited pro forma consolidated balance sheet date); and the Company shall have received a certificate signed on behalf of Coachmen giving effect the Investor to such Revolving Loan, as of such subsequent Closing Date , prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lendereffect; and (B) estimated unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the interim period between Coachmen’s most recent financial statements filed pursuant to the Exchange Act and the last day of the month immediately preceding such subsequent Closing Date ; orand
(ii) if Coachmen is not the Investor shall have performed in all material respects all covenants, agreements and obligations required to file period reports pursuant be performed by it under this Agreement on or prior to the Exchange Act as of such subsequent Subsequent Closing Date, (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect to the Revolving Loan to occur on such subsequent Closing Date, prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lender; (B) the audited consolidated balance sheet of Coachmen and its consolidated Subsidiaries as of the last day of the fiscal year immediately preceding such subsequent Closing Date (or if such subsequent Closing Date is prior to April 1st of any year, the fiscal year prior to such fiscal year immediately preceding such subsequent Closing Date) and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for such fiscal year; and (C) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the fiscal quarter immediately preceding such subsequent Closing Date. As of such subsequent Closing Date, no Material Adverse Effect shall have occurred since December 31, 2008;
(e) The Lender Company shall have received an updated Perfection Certificate, dated as of such subsequent Closing Date, in form and substance satisfactory to the Lender, which shall confirm that as of such subsequent Closing Date, the Lender continues to have a valid perfected security interest in all certificate signed on behalf of the Collateral, of first priority except for Permitted Encumbrances;
(f) The Lender shall have received the remaining Closing Fee of $200,000;
(g) On the Closing Date, the conditions in Section 3.1 shall have been satisfiedInvestor to such effect.
Appears in 1 contract
Conditions to Subsequent Closings. The obligations of each Party to consummate the Lender to purchase and pay for Revolving Loans to transactions contemplated by this Article IV shall be delivered on each Closing Date subsequent to the initial Closing are subject to the fulfillment, at or prior or concurrent satisfaction to a Subsequent Closing, of each of the following conditions:Call Conditions applicable to each such Party as set forth below.
(a) The Lender Prior to and as a condition of any Subsequent Closing:
(i) the Demonstration Facility shall have receivedbeen successfully constructed, commissioned and in form operation;
(ii) the Demonstration Facility shall have achieved key performance indicators including (A) [***], (B) [***] and substance satisfactory (C) [***];
(iii) the Board and the applicable Investor shall have approved the design, construction and operation of the relevant Investor Commercial Facility, by considering, amongst other things, [***]:
(A) [***];
(B) [***];
(C) [***];
(D) [***];
(E) [***];
(F) [***];
(G) [***]; and
(H) [***];
(iv) The Board and the applicable Investor shall have reviewed and approved the terms and conditions of the relationship between the Company and the SPV and all agreements, instruments or other documents necessary to effectuate the Subsequent Closing (“Tranche 2 Transaction Agreements”) including:
(A) a sublicense on terms and conditions acceptable to the Lender, all releases, terminations applicable Investor and such other documents as the Lender may request Company pursuant to evidence and effectuate which the termination by any outstanding secured creditor (other than the Existing Lenders) Company shall license to the Borrowers of their respective financing arrangements with SPV the Borrowers Licensed IPR and deliver to the termination SPV the LanzaTech Technology for the applicable Investor Commercial Facility;
(B) if Company SPV Equity is to be issued pursuant to such Subsequent Closing, the organizational and release by it or them, as the case may be, of any interest in and to any assets and properties governance documents of the Borrowers SPV;
(C) if Company SPV Equity is to be issued pursuant to such Subsequent Closing, a stockholders agreement or other applicable agreement by and each Obligoramong the Company and other holders of equity interests in the SPV, duly authorizedwhich shall include provisions, executed among others, relating to (1) [***], (2) [***], (3) [***], (4) [***], and delivered by it or each of them(5) [***];
(D) any applicable SPV Project Fee Agreement;
(E) all Commercial Offtake Agreements with respect to the Investor Commercial Facility, including, but not limited toas applicable, (i) UCC termination statements for all UCC financing statements previously filed by it or a Pre-Pay Commercial Offtaker Agreement and any of them or their predecessors, as secured party, agreements between the Company and the Borrowers or any ObligorSPV to account for the effect of the Pre-Pay Offtake Right on the revenue of the SPV, as debtor; and (ii) satisfactions and discharges including with respect to a reduction of any mortgages, deeds of trust or deeds the license fee to secure debt be paid by the Borrowers or any Obligor in favor SPV to the Company under the applicable SPV Project Fee Agreement; and
(F) all agreements pertaining to debt financing of it, in form acceptable for recording with the appropriate Governmental AuthoritySPV;
(bv) The Lender the applicable Investor shall have obtained all necessary internal approvals authorizing the Tranche 2 Cash Investment and the transactions contemplated by this Article IV, which shall be evidenced by the affirmative vote for the issuance of the Tranche 2 Notice related to such Subsequent Closing by the applicable Investor’s designee on the Board;
(vi) no Governmental Authority shall have enacted, issued, promulgated, enforced, or entered, or has commenced proceedings to enforce or enter, any Governmental Order which is in effect and has the effect of making the design, construction and operation of the applicable Investor Commercial Facility illegal, or otherwise restraining or prohibiting consummation of such transactions, or causing any of the transactions contemplated by this Article IV to be rescinded following completion thereof;
(vii) the applicable SPV shall have received an Officer’s Certificate of each Borrowerall necessary consents, dated as of authorizations, orders, and approvals from any Governmental Authority, and no such subsequent consent, authorization, order, and approval shall have been revoked , and all waiting periods, if any, shall have expired;
(viii) all approvals, consents, and waivers from third parties other than Governmental Authorities that are required to consummate the transactions to be consummated by the Tranche 2 Transaction Agreements shall have been received;
(ix) no Action shall have been commenced against the applicable Investor, the Company or the applicable SPV, which would prevent the Subsequent Closing Date substantially and no injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated by this Article IV;
(x) the form of Exhibit 2.1(a) heretoapplicable Investor, certifying that the Company and the Sponsor shall have duly performed and complied in all material respects with all agreements, covenants, and conditions required by this Agreement to be performed or complied with by it prior to or on the Subsequent Closing Date;
(i) such Borrower is Solvent after giving effect to such funding; (iixi) the representations and warranties of the applicable Investor, the Company and the Sponsor contained in Section 6 this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of this Loan Agreement are true, correct and complete on and as any representation or warranty qualified by materiality) or in all material respects (in the case of such subsequent Closing Date; (iiiany representation or warranty not qualified by materiality) on and as of such subsequent Closing Date, none the date hereof and on and as of the Transaction Documents contains any untrue statement applicable Subsequent Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a material fact specified date, the accuracy of which shall be determined as of that specified date in all respects); and
(xii) the applicable Investor shall have satisfied itself, at its discretion, of the entitlement of the SPV to (A) practice the Licensed Subject Matter (as such term is defined in the License Agreement) and (B) operate the relevant Investor Commercial Facility.
(b) At each Subsequent Closing:
(i) the applicable Investor (or omit other entity as provided for in Section 4.05) shall make, or cause to be made, its respective Tranche 2 Cash Investment to the relevant SPV by wire transfer in U.S. dollars (or an equivalent amount in the local currency of the applicable SPV’s jurisdiction of formation) of immediately available funds to such account or accounts as may be designated for such purpose;
(ii) the Company shall enter into a material fact necessary license agreement with the applicable SPV on terms and conditions acceptable to make the statements therein not misleadingapplicable Investor and the Company pursuant to which the Company shall sublicense to such SPV the Licensed IPR and deliver to such SPV the LanzaTech Technology for use by the Investor Commercial Facility;
(iii) the SPV shall issue to the Company the Company SPV Equity or execute and deliver to the Company the SPV Project Fee Agreement, as applicable; and
(iv) the Borrower has performed all agreements and satisfied all conditions which this Loan Agreement and parties to the applicable Tranche 2 Transaction Agreements (other Transaction Documents provide shall be performed or satisfied than the license agreement as contemplated by it on or before clause (ii) above) required for such subsequent Subsequent 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 executed and be continuing on delivered all such subsequent Closing Date ;Tranche 2 Transaction Agreements.
(c) On Prior to the Subsequent Closing related to the Mitsui SPV as set forth in Section 4.02(a):
(i) the Company shall have received from Mitsui written notice certifying that Mitsui is satisfied that the conditions set forth in this Section 4.03 are complete and that Mitsui has approved the Subsequent Closing related to the Mitsui SPV, which may be evidenced by the affirmative vote of the Mitsui Designee (as defined in the Stockholders’ Agreement) for the issuance of the Tranche 2 Notice related to such subsequent Closing Date , the Lender’s loans hereunder or exercise of any rights herein or in any Transaction Document Subsequent Closing; and
(ii) Mitsui shall not have become prohibited by any applicable law or governmental regulation and shall not subject it to any penalty orreceived reasonable assurance, in the Lender’s reasonable judgmentsole discretion of Mitsui, other onerous conditions under or pursuant to any applicable law or governmental regulation;that [***].
(d) Prior to such subsequent the Subsequent Closing Date , related to the Lender shall have received the following financial statements and information:Suncor SPV as set forth in Section 4.02(b):
(i) if Coachmen the Company shall have received from Suncor written notice certifying that Suncor is required to file period reports pursuant satisfied that the conditions set forth in this Section 4.03 are complete and that Suncor has approved the Subsequent Closing related to the Exchange Act Suncor SPV, which may be evidenced by the affirmative vote of the Suncor Designee (as defined in the Stockholders’ Agreement) for the issuance of such subsequent Closing Date , (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect the Tranche 2 Notice related to such Revolving Loan, as of such subsequent Closing Date , prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lender; and (B) estimated unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the interim period between Coachmen’s most recent financial statements filed pursuant to the Exchange Act and the last day of the month immediately preceding such subsequent Closing Date ; or
(ii) if Coachmen is not required to file period reports pursuant to the Exchange Act as of such subsequent Closing Date, (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect to the Revolving Loan to occur on such subsequent Closing Date, prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lender; (B) the audited consolidated balance sheet of Coachmen and its consolidated Subsidiaries as of the last day of the fiscal year immediately preceding such subsequent Closing Date (or if such subsequent Closing Date is prior to April 1st of any year, the fiscal year prior to such fiscal year immediately preceding such subsequent Closing Date) and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for such fiscal year; and (C) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the fiscal quarter immediately preceding such subsequent Closing Date. As of such subsequent Closing Date, no Material Adverse Effect shall have occurred since December 31, 2008;Subsequent Closing.
(e) The Lender Prior to the Subsequent Closing related to the IAG SPV as set forth in Section 4.02(c):
(i) the Company shall have received an updated Perfection Certificate, dated as of such subsequent from IAG written notice certifying that IAG is satisfied that the conditions set forth in this Section 4.03 are complete and that IAG has approved the Subsequent Closing Date, in form and substance satisfactory related to the LenderIAG SPV, which shall confirm that as of such subsequent Closing Date, may be evidenced by the Lender continues to have a valid perfected security interest in all affirmative vote of the Collateral, IAG Designee (as defined in the Stockholders’ Agreement) for the issuance of first priority except for Permitted Encumbrances;the Tranche 2 Notice related to such Subsequent Closing.
(f) The Lender Prior to the Subsequent Closing related to the Shell SPV as set forth in Section 4.02(d):
(i) the Company shall have received the remaining Closing Fee of $200,000;
(g) On the Closing Date, from Shell written notice certifying that Shell is satisfied that the conditions set forth in this Section 3.1 shall have been satisfied4.03 are complete and that Shell has approved the Subsequent Closing related to the Shell SPV, which may be evidenced by the affirmative vote of the Shell Designee (as defined in the Stockholders’ Agreement) for the issuance of the Tranche 2 Notice related to such Subsequent Closing.
Appears in 1 contract
Conditions to Subsequent Closings. The obligations obligation of NPI Purchaser to pay each Purchase Price Payment in connection with a Subsequent Closing on the related Subsequent Closing Date is subject to NPI Purchaser's receipt of each of the Lender to purchase and pay for Revolving Loans to be delivered on each Closing Date subsequent to the initial Closing are subject to the prior or concurrent satisfaction of the following conditionsfollowing:
(a) The Lender shall have received, in form and substance satisfactory Supplements to the Lender"Omnibus Certificate" of Company delivered under Section 4.2(a) and (b), all releases, terminations confirming the matters specified therein and such other documents as the Lender may request to evidence and effectuate the termination by containing any outstanding secured creditor (other than the Existing Lenders) amendments or supplements to the Borrowers of their respective financing arrangements with the Borrowers resolutions, charter documents 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;bylaws attached thereto.
(b) The Lender shall have received an Officer’s To the extent, if any, requested by NPI Purchaser, certificates of the valid existence and good standing of Company in its state of incorporation, issued by the appropriate authorities of such state, and certificates of Company's good standing and due qualification to do business in Utah.
(c) A Compliance Certificate of each Borrowerthe Chief Financial Officer of Company, dated as of such subsequent Closing Date substantially Date, in which such officer shall certify to the satisfaction of the conditions set out in Section 4.4.
(d) A drilling title opinion or opinions, or such other assurances of title (supplied by counsel acceptable to NPI Purchaser in its sole discretion) demonstrating to the reasonable satisfaction of NPI Purchaser that (i) Company has Good and Defensible Title to the Subject Interests and that (ii) after the Closing the NPI Purchaser will own the Net Profits Interest, free and clear of all liens, security interests, pledges, collateral assignments, charges, and encumbrances, and (iii) the Conveyance, or, if Company owns only Equitable Title to the Subject Interests to be burdened by the Net Profits Interest, then a Memorandum and Security Agreement in the form of Exhibit 2.1(aC, has been duly recorded in the real property records of the appropriate jurisdiction(s). If the Conveyance or the Memorandum and Security Agreement has not been filed at the time of the Subsequent Closing Date, the opinion in clause (iii) hereto, certifying that (i) such Borrower is Solvent after giving effect of the preceding sentence does not need to such funding; (ii) be provided on the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of such subsequent Subsequent Closing Date; provided, however, that NPI Purchaser may require Company to update any specified title opinions, including the addition of clause (iii) on and as of such subsequent Closing Date, none of the Transaction Documents contains any untrue statement proceeding sentence, through the recording of a material fact the Conveyance or omit a material fact necessary the Memorandum and Security Agreement or to make the statements therein not misleading; otherwise provide assurances reasonably acceptable to NPI Purchaser that NPI Purchaser owns its Net Profits Interest of record, free and clear of all liens, security interests, pledges, collateral assignments, charges, and encumbrances, (iv) the Borrower has performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall it being understood that NPI Purchaser may require these assurances to be performed or satisfied by it on or before such subsequent Closing Date except given after, 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 on such subsequent Closing Date ;
(c) On and well as of such subsequent Closing Date at, the Lender’s loans hereunder or exercise Initial Closing, and that no title deficiencies learned of by NPI Purchaser at any rights herein or time shall in any Transaction Document shall not have become prohibited by way be deemed to qualify any applicable law of Company's warranties of title or governmental regulation and shall not subject it indemnities with respect to title in any penalty or, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation;
(d) Prior to such subsequent Closing Date , the Lender shall have received the following financial statements and information:
(i) if Coachmen is required to file period reports pursuant to the Exchange Act as of such subsequent Closing Date , (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect to such Revolving Loan, as of such subsequent Closing Date , prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lender; and (B) estimated unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the interim period between Coachmen’s most recent financial statements filed pursuant to the Exchange Act and the last day of the month immediately preceding such subsequent Closing Date ; or
(ii) if Coachmen is not required to file period reports pursuant to the Exchange Act as of such subsequent Closing Date, (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect to the Revolving Loan to occur on such subsequent Closing Date, prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lender; (B) the audited consolidated balance sheet of Coachmen and its consolidated Subsidiaries as of the last day of the fiscal year immediately preceding such subsequent Closing Date (or if such subsequent Closing Date is prior to April 1st of any year, the fiscal year prior to such fiscal year immediately preceding such subsequent Closing Date) and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for such fiscal year; and (C) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the fiscal quarter immediately preceding such subsequent Closing Date. As of such subsequent Closing Date, no Material Adverse Effect shall have occurred since December 31, 2008;Net Profits Documents).
(e) The Lender shall have received an updated Perfection CertificateA legal opinion of Vinson & Elkins L.L.P., as counsel to Company, dated the Closing Xxxx, suxxxxxxially in the form attached as of such subsequent Closing Date, in form and substance satisfactory to the Lender, which shall confirm that as of such subsequent Closing Date, the Lender continues to have a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances;Exhibit D.
(f) The Lender shall have received the remaining Closing Fee of $200,000;A Purchase Supplement, and any documents called for thereunder.
(g) On A Conveyance, or a supplement to an existing Conveyance, or, if Company owns only Equitable Title to the Closing DateSubject Interests to be burdened by the Net Profits Interest, the conditions in Section 3.1 shall have been satisfieda Memorandum and Security Agreement.
(h) A Security Agreement, or a supplement to an existing Security Agreement.
Appears in 1 contract
Conditions to Subsequent Closings. The obligations obligation of Purchaser to pay each Purchase Price/Installment Payment in connection with a Subsequent Closing on the related Subsequent Closing Date is subject to Purchaser's receipt of each of the Lender following, in form, substance, and date satisfactory to purchase and pay for Revolving Loans to be delivered on each Closing Date subsequent to the initial Closing are subject to the prior or concurrent satisfaction of the following conditionsPurchaser:
(a) All legal matters in connection with this Agreement and the transaction contemplated hereby shall be acceptable to the Purchaser in its sole discretion.
(b) 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 partySubsequent Closing Date, 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;
(b) The Lender Purchaser shall have received an Officer’s Certificate of each Borrower, dated as of such subsequent Closing Date substantially in a certificate to that effect signed by the form of Exhibit 2.1(a) hereto, certifying that (i) such Borrower is Solvent after giving effect to such funding; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of such subsequent Closing Date; (iii) on and as of such subsequent Closing Date, none President or a Vice President of the Transaction Documents contains any untrue statement of a material fact or omit a material fact necessary to make the statements therein not misleading; Seller.
(ivc) the Borrower has The Seller shall have performed all agreements and satisfied all conditions which covenants required by this Loan Agreement and by the other Transaction Production Payment Documents provide to be performed by the Seller and all representations and warranties herein and in the other Production Payment Documents made by the Seller shall be performed or satisfied by it on or before such subsequent true and correct as of the Subsequent Closing Date except as otherwise disclosed Date, and the Purchaser shall have received a certificate to and agreed to in writing that effect signed by the Borrower Representative and President or a Vice President of the Lender; and (v) no Default or Event of Default shall have occurred and be continuing on such subsequent Closing Date ;
(c) On and as of such subsequent Closing Date , the Lender’s loans hereunder or exercise of any rights herein or in any Transaction Document shall not have become 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;Seller.
(d) Prior to such subsequent Closing Date The Seller shall have executed and delivered a Purchase Agreement Supplement and any documents called for thereunder (including any supplements required for the Gas Sales Agreement and the Oil Sales Agreement, the Lender shall have received the following financial statements Conveyance Supplement and information:
(i) if Coachmen is any other required Production Payment Documents together with letters in lieu of transfer orders addressed to file period reports pursuant to the Exchange Act as each purchaser of such subsequent Closing Date any Production Payment Hydrocarbons, (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect to such Revolving Loan, as of such subsequent Closing Date , prepared in accordance with GAAP, which shall be all in form and substance satisfactory acceptable to the Lender; and (B) estimated unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the interim period between Coachmen’s most recent financial statements filed pursuant to the Exchange Act and the last day of the month immediately preceding such subsequent Closing Date ; or
(ii) if Coachmen is not required to file period reports pursuant to the Exchange Act as of such subsequent Closing Date, (A) an estimated unaudited pro forma consolidated balance sheet of Coachmen giving effect to the Revolving Loan to occur on such subsequent Closing Date, prepared in accordance with GAAP, which shall be in form and substance satisfactory to the Lender; (B) the audited consolidated balance sheet of Coachmen and its consolidated Subsidiaries as of the last day of the fiscal year immediately preceding such subsequent Closing Date (or if such subsequent Closing Date is prior to April 1st of any year, the fiscal year prior to such fiscal year immediately preceding such subsequent Closing Date) and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for such fiscal year; and (C) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the fiscal quarter immediately preceding such subsequent Closing Date. As of such subsequent Closing Date, no Material Adverse Effect shall have occurred since December 31, 2008;Purchaser.
(e) The Lender Purchaser shall have received an updated Perfection CertificateIndenture Release from the Senior Secured Trustee relating to the Additional Subject Interests, 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 dated as of such subsequent the Subsequent Closing DateDate of counsel satisfactory to the Purchaser and licensed to practice in each of the States in which the Subject Interests are located, respectively, in form and substance satisfactory to the LenderPurchaser in its sole discretion which:
(i) will deliver an opinion as to the matters set forth in Sections 3(a), which shall confirm that as of such subsequent Closing Date3(b), the Lender continues to have a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances3(c) and 3(d) hereof ;
(fii) will express the author's opinion with respect to the sufficiency under the laws of such State of the form, execution, acknowledgment, recordability, validity and enforceability of the Conveyance Supplement and the other Production Payment Documents;
(iii) will state that the Seller has Defensible Title to those of the Subject Interests listed on Exhibit A to the Conveyance Supplement and located in such State, free of any liens, charges or encumbrances other than those described in Exhibit A to the Conveyance Supplement and that all filings and recordings necessary to perfect the 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 Supplement 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 Supplement to the Purchaser, the Production Payment will constitute a legal, valid and enforceable production payment dischargeable out of the volumes specified in the Conveyance Supplement of the production of Hydrocarbons accruing or attributable to the Additional Subject Interests; upon execution and delivery of the Conveyance Supplement to the Purchaser, the covenants and agreements of the Seller contained in the Conveyance will be 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 Seller 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 Supplement or any of the transactions contemplated thereby; will specify in which recording offices in such State the Conveyance Supplement 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 the Purchaser is not required, as a result of the transactions contemplated hereby, to qualify to do business in such State; and
(vii) 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; which opinions may contain such qualifications or limitations as may be acceptable to the Purchaser.
(h) [Intentionally omitted].
(i) The Lender Purchaser shall have received reserve reports and completed a Phase I environmental review satisfactory to the remaining Closing Fee 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 an environmental assessment firm acceptable to the Purchaser, in its reasonable discretion, in form, substance, scope and methodology satisfactory to the Purchaser and, since the date of $200,000;each report, there has been no material change in the information contained in each such report.
(gj) On No suit, action or other proceeding shall be pending to restrain, enjoin or otherwise prevent the Closing Date, consummation of this Agreement or the conditions transactions contemplated in Section 3.1 shall connection herewith or which may have been satisfiedany material affect on the Subject Interests.
Appears in 1 contract
