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 Obligations to Close (a) Conditions to Obligation of the Parent and Sub. The obligation of the Parent and Sub to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction or waiver of the following conditions:
(i) the representations and warranties of the Shareholders as set forth in Sections 6(a) and 7 must be true, correct and complete in all Material respects at and as of the Closing Date as evidenced by the delivery by the Shareholders to the Parent at Closing of the Shareholders' Closing Certificate to the effect that the representations and warranties of the Xxxxxx Shareholders and the Xxxxxxx Shareholders, as the case may be, as set forth in Sections 6(a) and 7 are true, correct and complete in all Material Respects as of the Closing Date to be attached to this Agreement as Exhibit G;
(ii) the Shareholders shall have performed and complied with all of their covenants in this Agreement in all Material respects through the Closing;
(iii) the Target shall have procured all necessary third party consents specified in Section 7(c), if any, reasonably requested by Parent in connection with the matters pertaining to the Target disclosed or required to be disclosed in the Disclosure Schedules and each of the Shareholders shall have taken any additional action (and the Xxxxxx Shareholders shall have caused the Target to take any additional action) that may be necessary, proper, or advisable in connection with any other notices to, filings with, and authorizations, consents, and approvals of Governmental Bodies, and third parties that he, she or it may be required to give, make or obtain;
(iv) no action, suit, or proceeding shall be pending or threatened before any court or quasi-judicial or administrative agency of any federal, state, local, or foreign jurisdiction wherein an unfavorable judgment, order, decree, stipulation, injunction, or charge would (A) prevent consummation of any of the transactions contemplated by this Agreement, (B) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, or (C) affect adversely the right of the Parent or Sub to own, operate, or control the Shares or the Target (and no such judgment, order, decree, stipulation, injunction, or charge shall be in effect);
(v) the Shareholders shall have delivered to the Parent the Shareholders' Closing Certificate (without qualification as to knowledge or Materiality or otherwise) to the effect that each of the conditions specified in Section 9(a)(i)-(iv) is satisfied in all respects to be attached to this Agreement as Exhibit G;
(vi) the Shares must represent all of the issued and outstanding capital stock of the Target and all of the Shares must be free and clear of any Security Interests or other liens, claims or encumbrances of any nature whatsoever;
(vii) the Parties and the Target must have received all other authorizations, consents and approvals of Governmental Bodies including such authorizations, consents or approvals required under the HSR Act, if any, and set forth in the Disclosure Schedules;
(viii) the Parent must have received from counsel to the Xxxxxx Shareholders an opinion with respect to the matters set forth in Sections 6(a)(i) and 7(a)-(d) addressed to the Parent and dated as of the Closing Date in substantially the form attached to this Agreement as Exhibit H;
(ix) the Parent must have received the resignations, effective as of the Closing, of each officer and director of the Target;
(x) no Material adverse change shall have occurred in the Target's Business or its future prospects;
(xi) any debt listed on Disclosure Schedule 9(a)(xi) has been paid in full;
(xii) except as set forth in the Disclosure Schedules, since the date of the Most Recent Financial Statement the Target must not have transferred, conveyed, disposed of and/or sold any of Material assets, except in the Ordinary Course of Business;
(xiii) the Target must have delivered to the Parent a certificate from the Target's treasurer stating that from the date of the Most Recent Financial Statement to the Closing Date there has been no change in the capitalization of the Target or any Material adverse change in its financial condition or assets;
(xiv) the Shareholders must have delivered to the Parent certificates representing the Shares, which shall be cancelled and exchanged for the Merger Consideration, and otherwise must have satisfied fully all of their obligations required by this Agreement to be satisfied before or at Closing;
(xv) the Target must not be in a bankruptcy, reorganization or insolvency proceeding nor shall any such proceeding be contemplated;
(xvi) Xxxxxx X. Xxxxxx (A) must have secured complete ownership and control of United States Patent Number 5,105,672 (the "Patent") by securing all of the right, title and interest of his co-patent holder in and to the Patent and must have assigned the Patent to the Sub using the Assignment attached to this Agreement as Exhibit M, and (B) must have secured complete ownership and control of United States Trademark Registration No. 1347219 for ROTO-LOK(R) and must have assigned it to the Sub using the Assignment attached to this Agreement as Exhibit N, and (C) must assign to the Sub all interest he may have to the unregistered trademark for "Technology in Harmony with Native" and related solar system logo using the Assignment attached to this Agreement as Exhibit O;
(xvii) Xxxxxx X. Xxxxxx must have signed and delivered the Consulting Agreement (Exhibit E) with attached Confidentiality Agreement;
(xviii) August Xxxxxxx must have signed and delivered the Employment Agreement (Exhibit F) with attached Confidentiality Agreement;
(xix) the Xxxxxx Shareholders must have delivered to the Parent a Certificate of Good Standing from the State of New Mexico, dated within five (5) business days prior to the Closing Date, certifying that the Target is in good standing in the State of New Mexico;
(xx) the Shareholders must have delivered to the Parent the Release attached as Exhibit I and dated as of the Closing Date, whereby the Shareholders release the Target from any and all claims and causes of action they may have against the Target as of the Closing Date;
(xxi) the Xxxxxx Shareholders must have delivered to the Parent and the Sub all minutes related to the Target for the past three years; and
(xxii) the Xxxxxx Shareholders and August Xxxxxxx must have delivered to the Parent, Officer, Directors and Significant Employee Questionnaires as prepared by the Parent and completed by Xxxxxx X. Xxxxxx, Xxxxx Xxxxxx and August Xxxxxxx. The Parent may waive any condition specified in this Section 9(a) if it executes a writing so stating at or prior to the Closing.
