Conditions to the Distribution (a) The consummation of the Distribution will be subject to the satisfaction, or waiver by Parent in its sole and absolute discretion, of the following conditions: (i) The SEC shall have declared effective the Form 10; no order suspending the effectiveness of the Form 10 shall be in effect; and no proceedings for such purposes shall have been instituted or threatened by the SEC. (ii) The Information Statement shall have been mailed to Parent’s unitholders or, in connection with the delivery of a notice of Internet availability of the Information Statement to such holders, posted on the Internet. (iii) The transfer of the Transferred Assets (other than any Delayed Transferred Asset) and Assumed Liabilities (other than any Delayed Assumed Liability) contemplated to be transferred from Parent to SpinCo on or prior to the Distribution shall have occurred as contemplated by Section 2.1, and the transfer of the Retained Assets (other than any Delayed Retained Asset) and Retained Liabilities (other than any Delayed Retained Liability) contemplated to be transferred from SpinCo to Parent on or prior to the Distribution Date shall have occurred as contemplated by Section 2.1. (iv) The actions and filings necessary or appropriate under applicable U.S. federal, U.S. state or other securities Laws or blue sky Laws and the rules and regulations thereunder and the NYSE rules shall have been taken or made, and, where applicable, have become effective or been accepted. (v) Each of the Ancillary Agreements shall have been duly executed and delivered by the applicable parties thereto. (vi) No order, injunction or decree issued by any Governmental Authority of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Separation, the Distribution or any of the transactions related thereto shall be in effect. (vii) The SpinCo Common Units to be distributed to the Parent unitholders in the Distribution shall have been accepted for listing on the NYSE, subject to official notice of distribution. (viii) The Retained Cash of five million dollars ($5,000,000) shall be held by Parent as of the Effective Time, and Parent’s net working capital (including the Retained Cash) as of the Effective Time shall be no less than five million dollars ($5,000,000). (ix) Parent shall have received (or shall receive simultaneously with the Distribution) the Specified Payment, the Indebtedness Payment and the proceeds from the SpinCo Cash Transfer in accordance with the terms of this Agreement and the Merger Agreement. (x) Each of the conditions to the party’s obligations to effect the Merger set forth in Section 8.1 (other than Section 8.1(a)(viii) and Section 8.1(a)(ix)), Section 8.2, and Section 8.3 of the Merger Agreement shall have been satisfied or waived. (b) The foregoing conditions are for the sole benefit of Parent, Parent GP and the GP Board and shall not give rise to or create any duty on the part of Parent, Parent GP or the GP Board to waive or not waive any such condition or in any way limit Parent’s right to terminate this Agreement as set forth in Article IX or alter the consequences of any such termination from those specified in Article IX. Any determination made by the GP Board prior to the Distribution concerning the satisfaction or waiver of any or all of the conditions set forth in Section 3.3(a) shall be conclusive and binding on the Parties. If Parent waives any material condition, it shall promptly issue a press release disclosing such fact and file a Current Report on Form 8-K with the SEC describing such waiver.
Conditions for Advance and Conditions to Closing Section 7.1
Conditions to the Closing On or before the Closing Date, the Seller shall deliver or cause to be delivered to the Trust Depositor each of the documents, certificates and other items as follows: (a) The List of Contracts, certified by the Chairman of the Board, President or any Vice President of the Seller together with an Assignment substantially in the form attached as Exhibit A hereto. (b) A certificate of an officer of the Seller substantially in the form of Exhibit B hereto. (c) An opinion of counsel for the Seller substantially in form and substance reasonably satisfactory to the Underwriters (and including as an addressee thereof each Rating Agency). (d) A letter or letters from Ernst & Young LLP, or another nationally recognized accounting firm, addressed to the Seller, the Trust Depositor and the Underwriters and stating that such firm has reviewed a sample of the Contracts and performed specific procedures for such sample with respect to certain contract terms and identifying those Contracts which do not so conform. (e) Copies of resolutions of the Board of Directors of the Seller or of the Executive Committee of the Board of Directors of the Seller approving the execution, delivery and performance of this Agreement and the transactions contemplated hereunder, certified in each case by the Secretary or an Assistant Secretary of the Seller. (f) Officially certified recent evidence of due incorporation and good standing of the Seller under the laws of Nevada. (g) A UCC financing statement naming the Seller as debtor, naming the Trust Depositor and the Trust as assignor secured parties, naming the Indenture Trustee as secured party and identifying the Contract Assets as collateral, in proper form for filing with the appropriate office in Nevada; a UCC financing statement naming the Trust Depositor as debtor, naming the Trust as assignor secured party, naming the Indenture Trustee as secured party and identifying the Trust Corpus as collateral, in proper form for filing with the appropriate office in Nevada; and a UCC financing statement naming the Trust as debtor, naming the Indenture Trustee, as secured party and identifying the Collateral as collateral, in proper form for filing with the appropriate office in Delaware. (h) An Officer’s Certificate from the Seller certifying that the Seller, on or prior to the Closing Date, has indicated in its computer files, in accordance with its customary standards, policies and procedures, that the Contracts have been conveyed to the Trust Depositor pursuant to this Agreement. (i) The documents, certificates and other items described in Section 2.02 of the Sale and Servicing Agreement, to the extent not already described above.
Conditions to the Transaction 7.1 Conditions to Obligations of Each Party to Effect the Transaction. The respective obligations of each party to this Agreement to effect the Transaction shall be subject to the satisfaction at or prior to the Closing Date of the following conditions:
Conditions to the Closing Date The obligation of each Lender to make its initial Loans hereunder is subject to satisfaction of the following conditions precedent to the Administrative Agent satisfaction: (a) The Administrative Agent receipt of the following, each of which shall be originals or facsimile or other electronic image transmission (e.g., “PDF” or “TIF” via electronic mail) (followed promptly by originals) unless otherwise specified, each properly executed by a member of the Senior Management of the signing Credit Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent: (i) (A) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Credit Parties, and (B) executed counterparts of each Security Document sufficient in number for distribution to the Administrative Agent and the Credit Parties, and an executed Note for each Lender who requests a Note; (ii) an officer’s certificate of each Credit Party executing a Loan Document, (A) certifying and attaching true, correct and complete copies of: (1) the certificate of formation, certificate of incorporation, articles of incorporation (or such equivalent thereof) of such Credit Party, and, where applicable, certified as of a recent date from the Secretary of State (or applicable Governmental Authority) of the jurisdiction in which such Credit Party is incorporated or formed, (2) the by-laws, limited liability company agreement, articles of association, partnership agreement or other applicable Governing Document of such Credit Party, and (3) the resolutions or votes of the board of directors or board of managers or partners (or equivalent thereof) of such Credit Party, authorizing such Credit Party’s entry into the Loan Documents to which it is a party; and (B) certifying the incumbency of members of the Senior Management of such Credit Party authorized to act in connection with this Agreement and the other Loan Documents to which such Credit Party is a party and providing a specimen signature of such members of the Senior Management of such Credit Party who will be signing Loan Documents on the Closing Date and thereafter; (iii) such documents and certifications as the Administrative Agent may require to evidence that each Credit Party executing a Loan Document is validly existing and in good standing (where applicable) in its jurisdiction of incorporation or formation, as applicable; (iv) a favorable legal opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, special New York counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, as to matters concerning the Credit Parties and the Loan Documents as the Administrative Agent may reasonably request; and (v) a certificate of a member of the Senior Management of the Borrower certifying that (1) the condition specified in Sections 4.02(b) has been satisfied, (2) there has been no event or circumstance since December 31, 2023 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (3) all consents, licenses, and approvals required in connection with the execution, delivery and performance by each Credit Party and the validity against each Credit Party of the Loan Documents to which such Credit Party is a party have been obtained. (b) The Administrative Agent shall have received duly executed Agency Account Agreements, signed by each of the applicable parties thereto, for each deposit account or securities account required to be subject to an Agency Account Agreement pursuant to the terms of Section 6.16 hereof.
Conditions to the Initial Loans No Lender shall be obligated to make any Loan or incur any Letter of Credit Obligations on the Closing Date, or to take, fulfill, or perform any other action hereunder, until the following conditions have been satisfied or provided for in a manner satisfactory to Agent, or waived in writing by Agent and Lenders:
Conditions to Closings Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at each Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at such Closing, of the following conditions:
Conditions to the Buyer’s Obligations The obligation of the Buyer to consummate the transactions contemplated by this Agreement and pay the Purchase Price is subject to the satisfaction (or waiver by the Buyer) as of the Closing of the following conditions: (a) Each of the representations and warranties made by the Seller in this Agreement shall be true and correct in all material respects when made and on and as of the Closing Date as though such representations and warranties were made on and as of Closing Date subject to any changes permitted pursuant to this Agreement. (b) The Seller shall have performed or complied in all material respects with each obligation and covenant required by this Agreement to be performed or complied with by the Seller on or before the Closing. (c) No order or injunction of any court or administrative agency of competent jurisdiction nor any statute, rule, regulation or executive order promulgated by any Governmental Authority of competent jurisdiction shall be in effect or threatened in writing as of the Closing which restrains or prohibits the transfer of the Asset or the consummation of any other transaction contemplated hereby. (d) The Title Company shall have issued to the Buyer the Title Policy (or a “marked-up” title commitment committing to issue such Title Policy) effective and dated as of the Closing Date. (e) The Seller shall have made (or caused to have been made) all of the deliveries required to be made by the Seller under SECTION 7.2. (f) The Seller shall have delivered evidence that the Management Agreement has been terminated. (g) Except as otherwise set forth below, it shall be a condition precedent to the Buyer’s obligation to close on the sale of the Asset, that (i) the closing date under the Related Agreements shall be the same as the Closing Date under this Agreement and (ii) the closing of the Related Agreements shall take place simultaneously with the Closing hereunder (i.e., the closing in this Agreement or any Related Agreement will have occurred when all of the conditions precedent to closing set forth in the applicable agreement have been met or waived by the appropriate party, including without limitation the Title Company’s receipt of the applicable deed or assignment of lease and its unconditional and irrevocable commitment to (x) record the deed or assignment of lease; and (y) issue the Title Policy effective as of such date, notwithstanding that such deed or assignment of lease may not have been recorded). Notwithstanding the foregoing, in the event that any of the Seller or Other Sellers is in default under this Agreement or any other Related Agreement, as applicable, and, the respective parties thereto fail to close under such Defaulted Agreement, then, so long as the Acquisition Threshold is met, a closing under such Defaulted Agreement shall not be a condition precedent to the Buyer’s obligation to close under this Agreement or any other Related Agreement (so long as the Acquisition Threshold is met); provided, however, in the event that the Acquisition Threshold is not met, then such defaults shall constitute a default under this Agreement and all other Related Agreements and the Buyer shall have the right to terminate this Agreement (and all other Related Agreements) and the Seller shall be deemed in breach hereof whereupon Buyer shall have the remedies set forth in SECTION 11.2(c), except that the aggregate amount of out-of-pocket costs and expenses that the Buyer will be entitled to recover from the Seller for damages under this Agreement and the other Related Agreements shall in no event exceed Three Hundred Thousand Dollars ($300,000.00) under SECTION 11.2(c). Additionally, if any of the Buyer or Affiliate Buyers elects to terminate this Agreement or any Related Agreement, as applicable, under any provision of this Agreement or such Related Agreement that expressly gives the Buyer (or an Affiliate Buyer, as applicable) the right to terminate (other than as the result of the Seller’s default for which the preceding sentence in this clause (g) shall control), then any such notice to terminate under any such agreement shall be deemed an election to terminate this Agreement and all of the Related Agreements, it being the intention of the parties that except as otherwise set forth in this clause (g), there shall be no Closing under this Agreement unless there is a closing under the Related Agreements and vice versa.
Conditions to the Initial Purchasers’ Obligations The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions: (a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date: (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum. (b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened. (c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein. (d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein. (e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C. (f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date. (g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date. (h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date. (i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
Conditions Precedent to the Initial Advance The obligation of the Lender Group (or any member thereof) to make the initial Advance is subject to the fulfillment, to the satisfaction of Agent, each Lender, and their respective counsel, of each of the following conditions on or before the Closing Date: (a) the Closing Date shall occur on or before October 15, 1998; (b) Agent shall have received all financing statements and fixture filings required by the Lender Group, duly executed by Borrower, and Agent shall have searches reflecting the filing of its financing statements with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Quincy, Massachusetts; (c) Agent shall have received each of the following documents, duly executed, and each such document shall be in full force and effect: (i) the Disbursement Letter; (ii) the Pay-Off Letter; (iii) the Suretyship Agreement; (iv) the Fee Letter; (v) the Agents' Side Letter; (vi) the Intercompany Subordination Agreement; (vii) the Stock Pledge Agreement; (viii) Termination statements relative to all financing statements filed by Sprint Communications; (ix) WorldCom Subordination Agreement (or termination statements relative to all financing statements filed by WorldCom Network Services, Inc. dba WilTel, Inc.); (x) the Hale Xxxordination Agreement; (xi) the Customer List Escrow Agreement; and 39 (d) Agent shall have received a certificate from the Secretary of each Borrower attesting to the resolutions of such Borrower's Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which such Borrower is a party and authorizing specific officers of such Borrower to execute the same; (e) Agent shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower; (f) Agent shall have received a certificate of status with respect to each Borrower, dated as of a date within a reasonable proximity to the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction; (g) Agent shall have received certificates of status with respect to each Borrower, each dated as of a date within a reasonable proximity to the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions; (h) Agent shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.10, the form and substance of which shall be satisfactory to Agent, each Lender, and their respective counsel; (i) Agent shall have received the Closing Date Business Plan certified by an officer of Borrower as being such officer's good faith best estimate of the financial performance of Borrower during the period covered thereby; (j) Agent shall have received a Collateral Access Agreement relative to Borrower's location in Quincy, Massachusetts; (k) Agent shall have received opinions of Borrower's counsel in form and substance satisfactory to Agent and each Lender in their sole discretion; (l) Agent and Agent's counsel shall have been provided with a copy of each Carrier Agreement in respect of a Material Carrier, the Bell Xxxantic Interconnection Agreement, and each agreement in respect of any Indefeasible Right to Use granted to Borrower, certified by an officer of Borrower as true, correct, and complete, and Agent shall have had a reasonable opportunity to review each such Carrier Agreement; (m) Agent shall have received a certificate from an officer of each Borrower certifying that all tax returns required to be filed such Borrower have been timely filed and all taxes upon such Borrower or its properties, assets, income, and franchises (including real property taxes and payroll taxes) have been paid prior to delinquency, except 40 such taxes that are the subject of a Permitted Protest; (n) Agent shall have received a certificate from an officer of each Borrower certifying that to the best of such Borrower's knowledge there are no outstanding complaints against any Borrower made to any public utilities commission in any jurisdiction in which any Borrower operates, except such complaints that have been fully disclosed to the Lenders and are satisfactory to Agent and the Lenders; (o) Agent shall have received a letter from Chase Equipment Leasing, Inc. ("Chase"), in form and substance satisfactory to each Lender, acknowledging that Chase's liens in the Equipment leased by Borrower from Chase does not extend to the Accounts generated by such Equipment; (p) Agent shall have received payment of all accrued and unpaid Lender Group Expenses; (q) Agent shall have received a certificate from an officer of each Borrower certifying that there has been no Material Adverse Change in the financial condition of such Borrower or the Collateral since July 31, 1998; and (r) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent, each Lender, and their respective counsel.
