Seller’s Conditions Precedent The obligation of Seller to sell the Property hereunder is subject to the satisfaction or waiver of each of the following conditions precedent:
(a) The representations and warranties of Buyer contained in Section 10 shall be true and correct at Closing as if the same were made on and as of that date.
(b) Buyer shall have performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or complied with by Buyer prior to or at Closing including, but not limited to, the delivery to Escrow Agent of the balance of the Purchase Price which is due at Closing.
(c) There shall not have been filed by or against Buyer at any time prior to the Closing Date any bankruptcy, reorganization or arrangement petition.
(d) The simultaneous closing of each of the transactions subject to the Related Agreements with this transaction on the terms provided for in each respective Related Agreement, it being specifically understood and agreed between Buyer and Seller that this Agreement represents one part of a multi-part transaction related to three (3) properties and that it is the agreement of Buyer and Seller that, unless this condition is waived in writing by Buyer and Seller, this transaction shall not close unless the transactions subject to the Related Agreements close simultaneously with this transaction; provided, however, if the transaction subject to the either or both of the Related Agreements is terminated on account of material damage to the real property subject thereto, the closing of such transaction shall not be a condition precedent to this Closing. If one or more of the conditions set forth above are not satisfied prior to the Closing and are not waived in writing by Seller prior to the Closing then, Seller may terminate this Agreement by notice, in writing, delivered to Buyer and Escrow Agent that Seller elects to terminate this Agreement, upon receipt of which the Escrow Agent shall cancel the Escrow and promptly return all documents to the depositing party, and Seller’s rights and remedies shall be as provided in Section 23 of this Agreement. Provided if Seller elects to close the transaction, with written notice of knowledge that any such condition has not been satisfied or waived, Seller shall be deemed to have waived any such condition.
Conditions Precedent This Amendment shall become effective as of the date hereof (the “Amendment Effective Date”), subject to the satisfaction of the following conditions precedent:
Buyer’s Conditions Precedent Buyer’s obligation to purchase the Partnership Interests or otherwise to perform any obligation provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
(a) On or before the expiration of the Inspection Period, Buyer shall have inspected and approved, in Buyer’s sole discretion, all aspects and matters relating to the Property, of any nature whatsoever, or waived such approval, in Buyer’s sole and absolute discretion; provided, that notwithstanding anything herein to the contrary, if Buyer fails to deliver to Seller, on or before the expiration of the Inspection Period, written notice of the failure of the condition set forth in Section 6.02 hereof, then such condition shall be deemed to have been satisfied without further notice.
(b) On or before the respective dates provided for herein, Seller shall have, in a timely fashion, substantially performed each and every covenant, undertaking and agreement to be performed by Seller pursuant to this Agreement.
(c) The Title Insurer shall deliver to Buyer at the Closing at Buyer’s sole expense an endorsement to Owner’s Policy of Title Insurance with respect to the Partnership’s ownership of the Real Property as contemplated under Section 2.01 hereof and in accordance with the Commitment, as it may have been modified as contemplated by this Agreement (the “Title Policy”), with extended coverage (i.e. with General Standard Exceptions 1 through 5 deleted), with respect to (i) taxes (except for taxes which are not yet due and payable which are apportioned hereunder), (ii) mechanic’s liens, (iii) survey issues (which shall be replaced by a “reading” of the Survey and an exception only for “shortages in area”), (iv) leases and parties in possession (which shall be replaced by a reference to “tenants under the leases described on the Rent Roll delivered at the Closing, as tenants only without any right or option to purchase all or any part of the Property”) and (v) items raised after the effective date of the Title Commitment), issued by the Title Insurer at its standard filed rates, as applicable as of the date and time of the issuance of the Title Policy, in the amount of the Purchase Price, containing Buyer’s Endorsements (as hereinafter defined), insuring the Partnership as owner of fee simple title to the Property subject only to the Permitted Exceptions. As used herein, the term “Buyer Endorsements” shall mean such endorsements as Buyer has requested by the end of the Inspection Period and the Title Insurer has agreed to issue in the Title Commitment by the end of the Inspection Period. Seller or the Management Company (to the extent permitted by the Title Insurer) shall execute at the Closing an affidavit in such form as the Title Insurer shall reasonably require for the issuance of the Title Policy and, provided Seller shall not incur any additional cost or liability, Buyer Endorsements. The Title Policy may be delivered after the Closing if at the Closing the Title Insurer issues a currently effective, duly executed “marked-up” Title Commitment and irrevocably commits in writing to issue the Title Policy in the form of the “marked-up” Title Commitment promptly after the Closing Date.
Purchaser’s Conditions Precedent 5.1.1 The obligations of the Purchaser under this Agreement are subject to the following conditions precedent (the “Purchaser’s Conditions Precedent”) being fulfilled to the satisfaction of, or waived in writing by, the Purchaser:
(a) the representations and warranties on the part of the Seller contained in this Agreement shall be true and accurate on and as of the Delivery Date as if made and repeated on and as of the Delivery Date with reference to the facts and circumstances existing as of the Delivery Date;
(b) no Total Loss of the Aircraft shall have occurred;
(c) the Transaction Documents shall have been executed and delivered by the parties thereto (other than the Purchaser);
(d) [Intentionally left blank];
(e) evidence of the issue of each approval, license and consent which may be required in connection with the performance by the Seller of all its obligations under the Transaction Documents;
(f) the Seller shall have made the Aircraft available for Delivery at the Delivery Location on the Delivery Date,
(g) on the Delivery Date the Aircraft shall be in construction configuration and conform in all material respects to the Delivery Conditions except as otherwise set forth in writing in accordance with Clause 3.4;
(h) the Aircraft has been duly certified by the FAA as to type and has a current, valid FAA airworthiness certificate;
(i) at the time of Delivery, Daugherty, Fowler, Peregrin, Xxxxxx & Xxxxxx, special FAA counsel to Purchaser, shall have confirmed that such counsel is forthwith furnishing Purchaser an opinion addressed to Purchaser to the effect that (i) the FAA Xxxx of Sale and FAA Application for Registration with respect to the Aircraft have been duly filed with the FAA; (ii) legal title to the Aircraft is vested in Purchaser, free and clear of all Encumbrances of record; and (iii) the transfer of title to the Aircraft has been registered on the International Registry in accordance with the Cape Town Convention;
(j) no legal or governmental action, suit or proceeding shall have been instituted or threatened before any court, administrative agency or tribunal, nor shall any order, judgment or decree have been issued or proposed to be issued by any court, administrative agency or tribunal to set aside, restrain, enjoin or prevent the consummation of this Agreement, any Transaction Document or the transactions contemplated hereby or thereby; If any of the Purchaser’s Conditions Precedent remain outstanding on the Termination Date and are not waived or deferred in writing by the Purchaser, the Purchaser shall be entitled at any time thereafter to terminate its obligation to purchase the Aircraft from the Seller by notice, whereupon neither party shall have any further obligation or liability hereunder, other than the obligation of the Seller to return the Initial Payment and any other of the payments received pursuant to Clause 2.4 of this Agreement to the Purchaser.
General conditions precedent The agreement of the Finance Parties referred to in clause 2 (Agreement of the Finance Parties) shall be further subject to:
(a) the representations and warranties in clause 4 (Representations and warranties) being true and correct on the Effective Date as if each was made with respect to the facts and circumstances existing at such time; and
(b) no Event of Default or Default having occurred and continuing at the time of the Effective Date.
Initial Conditions Precedent The effectiveness of this Agreement and the obligation of the Lenders to effect or permit the occurrence of the first Credit Event hereunder, whether as the making of a Loan or the issuance of a Letter of Credit, are subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) Revolving Notes and Term Notes executed by the Borrower, payable to each applicable Lender (other than any Lender that has requested that it not receive a Note) and complying with the terms of Section 2.11.
(a) and the Swingline Note executed by the Borrower;
(iii) the Guaranty executed by each of the Guarantors, if any, initially to be a party thereto;
(iv) an opinion of Xxxxxxxx & Worcester LLP, and an opinion of Xxxx Xxxxx Xxxxxxxx & Xxxx LLP, special Maryland counsel, in each case, counsel to the Borrower and the other Loan Parties, addressed to the Administrative Agent and the Lenders and covering such matters as the Administrative Agent may reasonably request;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership, declaration of trust or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect and each state in which a Collateral Property owned by such Loan Party is located;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, authorized to execute and deliver on behalf of the Borrower Notices of Borrowing, Notices of Swingline Borrowing, requests for Letters of Credit, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) a Compliance Certificate calculated as of the Effective Date on a pro forma basis for the Borrower’s fiscal quarter ending December 31, 2017;
(x) a Disbursement Instruction Agreement effective as of the Agreement Date;
(xi) evidence that the Fees, if any, then due and payable under Section 3.5., together with all other fees, expenses and reimbursement amounts due and payable to the Administrative Agent and any of the Lenders, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid;
(xii) a copy of all Operating Agreements, all Ancillary Agreements, the Business Management Agreement, the Property Management Agreement, in each case certified as true, correct and complete by the chief operating officer or chief financial officer of the Borrower; and
(xiii) such other documents, agreements and instruments as the Administrative Agent, or any Lender through the Administrative Agent, may reasonably request;
(b) there shall not have occurred or become known to the Administrative Agent or any of the Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower and its Subsidiaries delivered to the Administrative Agent and the Lenders prior to the Agreement Date that has had or could reasonably be expected to result in a Material Adverse Effect;
(c) no litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to (i) result in a Material Adverse Effect or (ii) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect, the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(d) the Borrower and its Subsidiaries shall have received all approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required to consummate the transactions contemplated hereby without the occurrence of any default under, conflict with or violation of (i) any Applicable Law or (ii) any agreement, document or instrument to which any Loan Party is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which could not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin or impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower or any other Loan Party to fulfill its obligations under the Loan Documents to which it is a party;
(e) the Borrower and each other Loan Party shall have provided all information requested by the Administrative Agent and each Lender in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(f) there shall not have occurred or exist any other material disruption of financial or capital markets that could reasonably be expected to materially and adversely affect the transactions contemplated by the Loan Documents.
Other Conditions Precedent Each of the conditions set forth in Sections 4.1.4, 4.1.5, 4.1.6 and 4.1.10 shall have been satisfied unless the failure of any such condition to be satisfied is the result of any action or inaction by Mortgagee.
Further conditions precedent If any of the conditions set forth below does not exist on or before the Closing Date with respect to either party hereto, the other party to this Agreement shall, at its option, not be required to consummate the transactions contemplated by this Agreement:
8.1 This Agreement and the transactions contemplated herein shall have been approved by the requisite vote of the Acquired Fund's shareholders in accordance with the provisions of the Safeco Trust's Trust Instrument and By-Laws, and certified copies of the resolutions evidencing such approval by the Acquired Fund's shareholders shall have been delivered by the Acquired Fund to the Acquiring Fund. Notwithstanding anything herein to the contrary, neither party hereto may waive the conditions set forth in this Paragraph 8.1;
8.2 On the Closing Date, no action, suit or other proceeding shall be pending before any court or governmental agency in which it is sought to restrain or prohibit, or obtain damages or other relief in connection with, this Agreement or the transactions contemplated herein;
8.3 All consents of other parties and all other consents, orders and permits of federal, state and local regulatory authorities (including those of the Commission and of state Blue Sky and securities authorities) deemed necessary by either party hereto to permit consummation, in all material respects, of the transactions contemplated hereby shall have been obtained, except where failure to obtain any such consent, order or permit would not involve a risk of a material adverse effect on the assets or properties of either party hereto, provided that either party may waive any such conditions for itself;
8.4 The Acquiring Trust's Registration Statement on Form N-14 shall have become effective under the Securities Act and no stop orders suspending the effectiveness of such Registration Statement shall have been issued and, to the best knowledge of the parties hereto, no investigation or proceeding for that purpose shall have been instituted or be pending, threatened or contemplated under the Securities Act;
8.5 The parties shall have received an opinion of Wilmer Cutler Pickering Xxxx xxx Xxxr XXX, xxxxxxxxtory xx xhe Safeco Trust and the Acquiring Trust and subject to customary assumptions and qualifications, substantially to the effect that for federal income tax purposes the acquisition by the Acquiring Fund of the Acquired Assets solely in exchange for the issuance of Acquiring Fund Shares to the Acquired Fund and the assumption of the Assumed Liabilities by the Acquiring Fund, followed by the distribution by the Acquired Fund, in liquidation of the Acquired Fund, of Acquiring Fund Shares to the Acquired Fund Shareholders in exchange for their Acquired Fund Shares and the termination of the Acquired Fund, will constitute a "reorganization" within the meaning of Section 368(a) of the Code;
8.6 The Acquired Fund shall have distributed to its shareholders, in a distribution or distributions qualifying for the deduction for dividends paid under Section 561 of the Code, all of its investment company taxable income (as defined in Section 852(b)(2) of the Code determined without regard to Section 852(b)(2)(D) of the Code) for its taxable year ending on the Closing Date, all of the excess of (i) its interest income excludable from gross income under Section 103(a) of the Code over (ii) its deductions disallowed under Sections 265 and 171(a)(2) of the Code for its taxable year ending on the Closing Date, and all of its net capital gain (as such term is used in Sections 852(b)(3)(A) and (C) of the Code), after reduction by any available capital loss carryforward, for its taxable year ending on the Closing Date; and
8.7 The Acquiring Fund shall have made a distribution of capital gains to its shareholders in November 2004 in accordance with its normal practices and, unless the Acquiring Fund distributes income monthly, the dividend distribution that the Acquiring Fund normally would make in December of 2004 shall have been made to shareholders of record prior to the Closing.
Conditions Precedent to EFFECTIVENESS OF SECTIONS 2.01 AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as of the first date (the "EFFECTIVE DATE") on which the following conditions precedent to the initial Advance by any Lender have been satisfied:
(a) There shall exist no action, suit, investigation, litigation or proceeding affecting the Company or any of its Consolidated Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any Note or the consummation of the transactions contemplated hereby.
(b) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of the Company and its Consolidated Subsidiaries as they shall have reasonably requested as a basis for making its decision to enter into its commitment hereunder.
(c) All governmental and third party consents and approvals necessary in connection with the transactions by the Company contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(d) The Company shall have notified the Agent in writing as to the proposed Effective Date.
(e) The Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the invoiced accrued fees and expenses of counsel to the Agent).
(f) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Company, dated the Effective Date, stating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(g) The Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the Revolving Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes of the Company to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes to be delivered by it, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the Notes to be delivered by it.
(iii) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes to be delivered by it and the other documents to be delivered by it hereunder.
(iv) A favorable opinion of Nicholas J. Camera, General Counsel of the Compaxx, xxx xx Xleary, Gottlieb, Steen & Hamilton, counsel for the Company, substanxxxxxy in the form of Exhibits D-1 and D-2 hereto, respectively.
(v) A favorable opinion of Shearman & Sterling, counsel for the Agent, in form and substance satisfactory to the Agent.
(h) The termination of the commitments of the Lenders and the payment in full of all Debt outstanding under the bilateral credit agreements and other confirmed lines of credit listed on Schedule 3.01(h).
CONDITIONS PRECEDENT TO LOAN The obligations of Lender to make the Loan hereunder are subject to the satisfaction by Borrower of the following conditions:
