Post-Closing Covenants. (i) On or prior to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent. (ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor. (iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document. (iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated. (v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent. (vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent. (vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes). (viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto. (ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 4 contracts
Samples: Amendment and Exchange Agreement (Earth Biofuels Inc), Amendment and Exchange Agreement (Earth Biofuels Inc), Amendment and Exchange Agreement (Earth Biofuels Inc)
Post-Closing Covenants. (a) If the Specified Hugoton Assets Sale has not been consummated on or before October 1, 2017, the Borrower shall, within five calendar days thereafter, enter into and maintain Hedging Arrangements with a Swap Counterparty for the 2020 calendar year on terms satisfactory to the Administrative Agent covering notional volumes of projected production (on a monthly basis) equal to 3,695,000 barrels in the aggregate for $47.14 per barrel.
(b) On or before the 45th day following the Closing Date (or such later date as agreed by the Administrative Agent in its sole discretion), the Borrower shall, and shall cause each Credit Party to, (i) On or prior to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance maintain all deposit accounts with the terms Administrative Agent, a Lender or an Affiliate of the Share Exchange Agreement without any amendment, modification or waiver thereof a Lender and cause such accounts (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iiiother than Excluded Accounts) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached heretobe subject to Account Control Agreements, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I cause all securities accounts to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable subject to perfect the security interests purported to be created by each Security DocumentAccount Control Agreements.
(ivc) On or prior to five (5) calendar days after before the 15th Business Day following the Closing DateDate (or such later date as agreed by the Administrative Agent in its sole discretion), if the Specified Hugoton Assets Sale has not been consummated, the Company Borrower shall take such actions and execute and deliver such documents and instruments as the Administrative Agent shall reasonably require to ensure that the Administrative Agent shall, at all times, have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its propertyreceived satisfactory title evidence, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) title evidence shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior Administrative Agent in its sole reasonable discretion and shall include information regarding the before payout and after payout ownership interests held by the Credit Parties, for all xxxxx attributable to the seventy-seventh (77th) calendar day after Hugoton Assets, covering at least 85% of the Stockholder Approval Date, PV10 of the Company shall have filed an amended Proven Reserves and restated Certificate PDP Reserves of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable Credit Parties attributable to the Collateral Agent.
(vii) On or prior Hugoton Assets as such Hugoton Assets were evaluated in the Initial Engineering Report; provided that, if the Administrative Agent is not satisfied with such title evidence, that shall not trigger a Default hereunder, but the Borrower shall comply with Section 5.12 if the Administrative Agent provides a notice thereof to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled Borrower in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes)accordance with Section 5.12.
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 2 contracts
Samples: Credit Agreement (Berry Petroleum Corp), Credit Agreement (Berry Petroleum Corp)
Post-Closing Covenants. In consideration for the consents and amendments set forth herein, the Loan Parties agree to deliver the following:
(a) within ten (10) calendar days following the Second Amendment Date (or such longer period as approved by the Administrative Agent), certified copies of the material documents evidencing that the Conversion and all other Reorganization Transactions have been completed;
(b) within fifteen (15) calendar days following the Second Amendment Date (or such longer period as approved by the Administrative Agent), (i) On or solely to the extent any of the following have been modified since the respective documents and certificates provided prior to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered Second Amendment Date pursuant to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing DateSection 3 above, (A) the Share Exchange shall have been consummated in accordance with the terms 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 the Share Exchange Agreement without any amendmentGeneral Partner, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG Parent and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto Borrower certified as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created recent date by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase state of formation of such Person, and (as defined below)B) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each such Person of the by-laws of the General Partner, the Parent and the Borrower, 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 substance reasonably acceptable (ii) a certificate of good standing (or certificate of similar meaning) with respect to the Collateral Agent.
(vi) On or prior General Partner, the Parent and the Borrower issued as of a recent date after giving effect to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with Reorganization Transactions certified by the Secretary of State of Delaware effecting the Reverse Stock Split state of formation of each such Person; and
(c) within fifteen (15) calendar days following the Second Amendment Date (or such longer period as defined belowapproved by the Administrative Agent), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed an opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Other AgreementsBorrower, addressed to the Administrative Agent and the Lenders as to the effectiveness and enforceability of the Loan Documents against the Borrower after giving effect to the Reorganization Transactions and such other matters as reasonably requested by the Administrative Agent and (ii) a certificate duly executed by a Responsible Officer of the Releases, (iii) satisfied or waived all conditions Borrower certifying to the closings contemplated by such agreements effectiveness and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, enforceability of the Series B Notes, identical Loan Documents against the Borrower after giving effect to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as Reorganization Transactions. The parties hereto agree that failure of the Closing Date, in substantially Borrower to satisfy the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, foregoing covenants in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing time periods set forth herein (as the same may be extended by the Company's transfer agentAdministrative agent as set forth herein) shall result in an immediate Event of Default under the Amended Credit agreement.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 2 contracts
Samples: Term Loan Agreement (Federal Realty Investment Trust), Credit Agreement (Federal Realty Investment Trust)
Post-Closing Covenants. (a) The Sellers agrees that, subsequent to the Time of Closing, they will:
(i) On or prior to five (5) calendar days after at the Closing Date, Fourth Third LLC shall have duly executed request and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms expense of the Share Exchange Agreement without any amendmentBuyer, modification or waiver thereof (except with the prior written consent of the Collateral Agent)execute and deliver such additional conveyances, (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG transfers and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary orother assurances as, in the opinion of the Collateral AgentBuyer's Counsel, desirable are reasonably required to perfect carry out the security interests purported intent of this Agreement and to transfer the Purchased Shares to the Buyer;
(ii) take all steps reasonably required by the Buyer to assist the Buyer in retaining the goodwill of the Corporation and the Business and in particular to retain all employees in the Employee Schedule unless the Buyer requests otherwise;
(iii) perform all of their obligations to be created by each Security Documentperformed under this Agreement after the Time of Closing.
(iv) On not make any sale, transfer or prior to five other disposition of the FutureLink Shares or such other shares issued in accordance with subsection 2.04 (5c) calendar days after in violation of the Closing DateAct, the Company shall have ordered from a nationally recognized lien search firm Securities and Exchange Act of 1934, as amended (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor "Exchange Act") or the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens rules and as otherwise agreed in writing by the Investor, shall cover any regulations of the Collateral Securities and Exchange Commission (as defined in the Security Documents"Commission") and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminatedpromulgated thereunder.
(v) On The Sellers will cause a "distributor" as defined in Regulation S to send to any broker/dealer or prior other person receiving a commission on the sale of the FutureLink Shares or such other shares issued pursuant subsection 2.04(c), a confirmation or other notice stating that the transferee is subject to the second (2ndsame restrictions on transfer to U.S. Persons or for the account of or benefit of U.S. Persons during the Distribution Compliance Period as provided herein. Further, any transferee of the FutureLink Shares or such other shares issued pursuant subsection 2.04(c) calendar day after during the Stockholder Approval Date, the Company shall Distribution Compliance Period will have filed to enter into an amended and restated Certificate of Incorporation agreement with the Secretary of State of Delaware effecting Buyer covering the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agentmatters set forth herein.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 2 contracts
Samples: Purchase Agreement (Futurelink Distribution Corp), Purchase Agreement (Futurelink Distribution Corp)
Post-Closing Covenants. 9.1 FPI acknowledges that the agreements contained in this Article 9 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, FPM would not enter into this Agreement. FPI acknowledges and agrees that the failure by FPM or FPI to satisfy, perform and comply with the covenants set forth in this Section 9.1 (“Post-Closing Covenants”) following the Closing will have a material adverse effect on FPM and the investment of the participants in the Capital Raise. During the period beginning upon the Closing and ending on the first anniversary of the Closing, each of FPI and FPM shall satisfy, perform, and comply with those of the following covenants as applicable:
9.1.1 FPM shall remain a Section 15(d) reporting company in compliance with and current in its reporting requirements under the Exchange Act, and remain quoted on, at a minimum, the OTCBB;
9.1.2 FPM shall (i) On certify in writing to any person holding restricted shares of FPM Common Stock as of the date of this Agreement (or prior having obtained such shares in or by virtue of the Capital Raise) that FPM has filed all of the reports required to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and be filed by it under the Share Exchange Agreement each in a form reasonably acceptable Act to the Collateral Agent.
(ii) On enable such person to sell such person’s restricted stock under Rule 144 or prior to five (5) calendar days after the Closing Date145, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, applicable in the opinion of the Collateral Agentcircumstances, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Datewill inform such person in writing that it has not filed any such report or reports, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed upon being informed in writing by such person of its intent to sell any shares under Rule 144 or Rule 145 promulgated under the Investor, shall cover Securities Act (including any of the Collateral (as defined rule adopted in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person substitution or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined belowreplacement thereof), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) if any certificate representing any restricted shares of FPM Common Stock is presented to FPM’s transfer agent for registration of transfer in connection with any sale theretofore made or to be made under Rule 144 or 145, provided such certificate is duly endorsed for transfer by the Releasesappropriate person(s) or accompanied by a separate stock power duly executed by the appropriate person(s) in each case with reasonable assurances that such endorsements are genuine and effective, and is accompanied by an opinion of counsel satisfactory to FPM and its counsel that such transfer has complied with the requirements of Rule 144 or 145 (iii) satisfied “Opinion”), as the case may be, and is not restricted by any applicable state securities law requirement, promptly instruct the Transfer Agent to register such transfer and to issue one or waived all conditions more new certificates representing such shares to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes transferee and, if applicableappropriate under the provisions of Rule 144 or 145, as the Series B Notescase may be, identical to the Amended and Restated Primary Notes andstate securities law requirements, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On free of any stop transfer order or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.restrictive legend;
Appears in 2 contracts
Samples: Merger Agreement (Fluoropharma Medical, Inc.), Merger Agreement (Fluoropharma Medical, Inc.)
Post-Closing Covenants. (ia) On or prior to five (5) calendar days after To the extent not already delivered on the Closing Date or on the Debt Assumption Date, Fourth Third LLC as applicable, the Borrower shall have duly executed and delivered deliver (x) legal opinions of Xxxxx Xxxx LLC, counsel to the Investor Loan Parties, and the Company the intercreditor agreement and consent Xxxxxxx Xxxxxx & Green, P.C., New York counsel to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing DateLoan Parties, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (Dy) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Datesecretary’s certificates, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except case with respect to any Permitted Liens (as defined in the Amended Guarantors and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable satisfactory to the Collateral AgentArrangers:
(i) with respect to the Pre-Assumption Guarantors, within fifteen Business Days following the Closing Date; provided, however, that no such opinions and secretary’s certificates shall be required to be delivered if (a) the Debt Assumption has occurred prior to such 15th Business Day following the Closing Date (or such later date as the Administrative Agent may agree to in its sole discretion) or (b) the Loans have been repaid in full prior to such date; and
(ii) with respect to the Post-Assumption Guarantors, within ten Business Days following the Debt Assumption Date; provided, however, that no such opinions and secretary’s certificates shall be required to be delivered if the Loans have been repaid in full prior to such date.
(vib) On or prior to Following the seventy-seventh (77th) calendar day after the Stockholder Approval Debt Assumption Date, the Company shall have filed an amended Loan Parties shall, to the extent such actions are not already completed on the Debt Assumption Date (it being understood that all Collateral which may be perfected by the filing of a UCC financing statement is required to be perfected on the Debt Assumption Date pursuant to the Guarantee and restated Certificate Collateral Agreement):
(i) with respect to Material Real Estate Assets owned as of Incorporation with the Secretary of State of Delaware effecting Debt Assumption Date, provide the Reverse Stock Split (Mortgages and the other documents, and take such other actions, as defined beloware specified in Section 6.11(b)(i)-(viii), in form and substance reasonably acceptable to each case within 90 days following the Debt Assumption Date; and
(ii) perfect a security interest in the Collateral Agent.
in favor of the Administrative Agent for the benefit of the Secured Parties by the following deadlines: (viii) On with respect to certificated equity interests, within ten Business Days (or prior such later date as the Administrative Agent may agree to the fifth (5thin its sole discretion) calendar day after the Debt Assumption Date; (ii) with respect to intellectual property (other than any intellectual property with respect to which security interests may be perfected by the filing of a UCC financing statement), within ten Business Days (or such later date hereofas the Administrative Agent may agree to in its sole discretion) after the Debt Assumption Date; and (iii) with respect to all other Collateral, within 90 days following the Debt Assumption Date, in the case of each of the Other Investors and the Company shall have foregoing clauses (i) executed the Other Agreements), (ii) the Releases, and (iii) satisfied or waived all conditions ), subject to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants arrangements to be cancelled mutually agreed between the Arrangers and the Borrower and subject to such extensions as deemed appropriate by the Arrangers in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changestheir sole discretion).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 2 contracts
Samples: Bridge Facility Agreement (Post Holdings, Inc.), Bridge Facility Agreement (Bellring Brands, Inc.)
Post-Closing Covenants. (i) On or prior to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the A. The Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor covenants that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after following the Closing Date, the Company shall have ordered from a nationally recognized lien search firm agrees not to directly or indirectly issue any Common Shares or securities or other financial instruments convertible into or having the right to acquire Common Shares (such as CT), for delivery other than pursuant to the Investor, true copies of UCC search results, listing all effective financing statements rights or obligations under securities or instruments outstanding) or enter into any agreement or arrangement under which name as debtor the Company acquires or any of its Subsidiaries filed transfers to another, in the prior five years to perfect an interest whole or in any assets thereofpart, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in economic consequences of ownership of Common Shares, whether that agreement or arrangement may be settled by the Security Documents) and delivery of Common Shares or other securities or cash, or agree to become bound to do so, or disclose to the results of searches public any intention to do so, for any tax lien and judgment lien filed against such Person or its propertya period from the Closing Date until 120 days following the Offering without BMO’s prior written consent, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) consent will not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminatedunreasonably withheld.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors B. BMO and the Company shall have (i) executed the Other Agreementsshall, (ii) the Releasesupon mutual agreement in good faith, (iii) satisfied or waived all conditions appoint two additional directors to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying board of directors and appoint the number of shares of Company’s Chief Operating Officer.
C. The Company shall use its reasonable best efforts to cause the Company’s Common Shares to be listed on the American Stock outstanding as of a date Exchange within five days of 6 months from the Closing Date.
D. The Company agrees that, upon completion of the Offering, and for a term of 24 months subsequent to the Closing of the Offering:
(1) BMO shall be entitled to participate as sole bookrunner and lead manager of any subsequent public offering of the securities of the Company with a minimum right to participate of 60% of the deal’s economics; or
(2) in the event of the proposed sale of all or a substantially portion of the assets of the Company or its Subsidiaries, or any business combination involving the Company in which all or a substantially portion of the outstanding securities of the Company are acquired by a third party, in lieu of a transaction, BMO shall be entitled to participate as financial advisor to the Company in relation to such transaction; and
(3) in the case of (1) or (2) above, such engagement shall be contained in one or more separate agreements and the fees for such services will be negotiated separately and in good faith and be consistent with the fees paid to investment banks in North America for similar services in comparable situations.
Appears in 2 contracts
Samples: Agency Agreement (Legend International Holdings Inc), Agency Agreement (Legend International Holdings Inc)
Post-Closing Covenants. (ia) On JVCo, each Guarantor and each Shareholder undertake to Purchaser and Purchaser Parent, and Purchaser and Purchaser Parent undertake to JVCo, each Guarantor and each Shareholder that they shall after Closing implement such post-Closing transactions or other matters as they have agreed to implement in writing by way of side letters prior to five Closing, including, without limitation, a side letter providing an agreed plan for acquiring RusCo’s shares not owned by JVCo and converting RusCo into a private company (5) calendar days after the “Post-Closing DateSide Letter”), Fourth Third LLC shall have duly executed and delivered a side letter relating to the Investor financial audit of JVCo Group (the “Audit Side Letter”) and a side letter providing an agreed plan for the Company conversion of JVCo into a limited liability company (the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent“LLC Side Letter”).
(iib) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms Each of the Share Exchange Agreement without Guarantors, the Shareholders and Purchaser undertake to each other and JVCo that they shall not, at any amendmenttime following the Closing, modification acquire (either directly or waiver thereof (except with the prior written consent indirectly) any shares or any class or series of the Collateral Agent)share capital or Voting Debt, (B) PNG shall have appointed the individuals set forth on Table I or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of Schedule 1(h)(iii) any kind to the offices set forth opposite their names on Table I acquire, any shares of Schedule 1(h)(iii) attached heretoany class or series of share capital or any Voting Debt, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investorany JVCo Subsidiary.
(iiic) On or To the extent not completed prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security DocumentsClosing, the Company shall have delivered Shareholders and Purchaser undertake to exercise their commercially reasonable efforts to procure that JVCo Group completes the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed matters set out in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security DocumentSchedule C hereto.
(ivd) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any Each of the Collateral (Shareholders and Purchaser each undertake to use their best endeavours to procure that the Material JVCo Subsidiary Board Regulations are adopted by such Material JVCo Subsidiary as defined in soon as reasonably practicable following the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminatedClosing.
(ve) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors The Guarantors and the Company Shareholders shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived procure that all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder Separation Agreements (other than the Proportionate Changes)Material Separation Agreements or any other Separation Agreements which the Purchaser and Shareholders agree in writing shall not be terminated on or prior to 1 January 2008) shall have been terminated on or prior to 1 January 2008 except where such termination is prohibited by applicable law.
(viiif) On The parties shall use their respective best endeavours to procure that JVCo causes each Controlled JVCo Subsidiary to terminate the relevant Separation Agreements to which it is a party (other than any Material Separation Agreement or any other Separation Agreements which the Purchaser and Shareholders agree in writing shall not be terminated on or prior to the fifth (5th1 January 2008) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached heretoon or prior to 1 January 2008.
(ixg) On JVCo, each Guarantor and each Shareholder undertake to Purchaser and Purchaser Parent, and Purchaser and Purchaser Parent undertake to JVCo, each Guarantor and each Shareholder to use their best endeavours to procure that on or prior to 1 January 2008 new separation agreements (the fifth (5th“New Separation Agreements”) calendar day after which shall replace the date hereofSeparation Agreements, other than the Company Material Separation Agreements and any other Separation Agreements which the Purchaser and Shareholders agree shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructionsnot be replaced, in the form of Exhibit L attached hereto, which instructions shall have been delivered (1) agreed to the reasonable satisfaction of the Shareholders and acknowledged in writing Purchaser, (2) duly approved by the Company's transfer agentshareholders (or, where necessary, the board of directors) of the parties thereto in accordance with applicable law and (3) duly executed by the parties thereto.
(xh) On The Shareholders, Purchaser, JVCo and the Guarantors undertake to use their respective reasonable endeavours to take, or prior cause to be taken, all actions in order to transfer the employees of the Chinese representative office of the Existing Trading Companies, which shall have been mutually agreed by the parties for such transfer, to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days Chinese representative office of the Closing DateNew Trading Company upon the establishment of such representative office on terms and conditions mutually agreed by the parties.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (International Paper Co /New/)
Post-Closing Covenants. (i) On or prior to five before the date that is thirty (530) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company Borrower shall have ordered from a nationally recognized lien search firm (such as CT), a) for delivery each Tenant whose Lease is not automatically subordinate to the Investorlien of the Mortgage on the applicable Property, true copies of UCC search results, listing all effective financing statements which name as debtor obtain a subordination agreement in form and substance sufficient for the Company or any of its Subsidiaries filed in title company to insure that such Lease is subordinate to the prior five years to perfect an interest in any assets thereof, together with copies lien of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral Mortgage; (as defined in the Security Documentsb) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed use commercially reasonable efforts to in writing by the Collateral deliver to Administrative Agent and except an estoppel certificate with respect to such Tenant’s Lease evidencing that the Lease is in full force and effect and that there are not defaults by the applicable landlord thereunder that would have a material adverse effect on the value of such Real Property or the applicable Lease and (c) deliver to Administrative Agent a landlord estoppel agreement with respect to the Omaha Facility includes, at a minimum, an agreement from the landlord under the Ground Lease for the Omaha Facility that upon any Permitted Liens termination or rejection of the Ground Lease for the Omaha Facility by reason of any default by the lessee thereof, or for any reason (including, without limitation, the bankruptcy of any party to the Ground Lease for the Omaha Facility) (except by reason of condemnation or casualty), the Administrative Agent or its designee shall have the option to obtain a new agreement for the Premises from Landlord on the same terms and conditions as defined in the Amended and Restated Primary NotesGround Lease; provided, that failure to comply with this clause (c) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On constitute an Event of Default so long as, on or prior to the second date that is thirty-five (2nd35) calendar day days after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially Borrower shall delete the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter Omaha Facility from the Company’s transfer agent certifying the number of shares of Common Stock outstanding Borrowing Base and make and payments related to such deletion as of a date within five days of the Closing Datemay be required by Section 1.8(b)(i).
Appears in 2 contracts
Samples: Credit Agreement (Global Medical REIT Inc.), Credit Agreement (Global Medical REIT Inc.)
Post-Closing Covenants. (i) On or prior to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
(xi) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received a litigation claim release with respect to YA Global Investments, L.P. and any affiliates engaged in any litigation with the Company or any of its Subsidiaries or PNG (the "Yorkville Entities"), in form and substance satisfactory to the Collateral Agent, shall have been duly executed and delivered by the Yorkville Entities to the Investor and the Company.
(xii) If at any time after the Closing Date, the legal fees and expenses of Investor with respect to the Company exceeds the Investor Legal Fee Amount, no later than five (5) calendar days after the Company’s receipt of written notice of such excess legal fees and expenses (the "Investor Additional Legal Fee Amount") by the Investor, the Company shall issue an additional Series B Note to the Investor, in a form identical to the Series B Notes issued hereunder and pursuant to the Other Agreements, with a principal amount equal to such Investor Additional Legal Fee Amount.
Appears in 2 contracts
Samples: Amendment and Exchange Agreement (Earth Biofuels Inc), Amendment and Exchange Agreement (PNG Ventures Inc)
Post-Closing Covenants. Borrower hereby covenants and agrees to the following:
(ia) On Within thirty (30) days of the Closing Date (or such later date as determined by the Lender in its sole discretion), the Lender shall have received, with respect to the insurance coverage required by Section 6.14, to the extent not delivered to the Lender on or prior to five (5) calendar days after the Closing Date, Fourth Third LLC evidence of such endorsements as to the named insureds or loss payees, or in the case of business interruption insurance, collateral assignees, thereunder as the Lender may request and providing that the applicable policies may be terminated or cancelled (by the insurer or the insured thereunder) only upon 30 days' (10 days' in the case of non-payment) prior written notice to the Lender and each such named insured or loss payee.
(b) Within sixty (60) days of the Closing Date (or such later date as determined by the Lender in its sole discretion), the Lender shall have duly executed and received with respect to Real Estate Collateral owned in fee by a Loan Party that is a DBM Entity, to the extent not delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On Lender on or prior to five (5) calendar days after the Closing Date, a Mortgage (Aor amended and restated Mortgage) duly executed by the Share Exchange applicable Loan Party, in recordable form, together with such other Real Estate Deliverables as the Lender may request.
(c) Within forty-five (45) days of the Closing Date (or such later date as determined by the Lender in its sole discretion), the Lender shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendmentreceived, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and extent not delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed Lender on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, all control agreements with respect to any deposit account, securities account, commodity account, securities entitlement or commodity contract of any Loan Party existing on the Closing Date that, in accordance the reasonable judgment of Lender, is required for the Loan Parties to comply with the terms Loan Documents, each duly executed by, in addition to the applicable Loan Party, the applicable financial institution.
(d) Within sixty (60) of the Security DocumentsClosing Date (or such later date as determined by the Lender in its sole discretion), the Company Lender shall have received with respect to Real Estate Collateral owned in fee by a Loan Party that is a Graywolf Entity (other than the Real Estate with the address of 0000 X. Xxxxxxxx Xxxx., Xxxxxxxxx, XX 34448), to the extent not delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements Lender on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, a Mortgage duly executed by the Company shall have ordered from a nationally recognized lien search firm (such as CT)applicable Loan Party, for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereofrecordable form, together with copies of such financing statements, none of which, except for Permitted Liens and other Real Estate Deliverables as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminatedLender may request.
(ve) On Within ninety (90) days of the Closing Date (or prior such later date as determined by the Lender in its reasonable discretion), the Loan Parties shall have used commercially reasonable efforts to deliver to the second (2nd) calendar day after the Stockholder Approval Date, the Company Lender shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (received a landlord waiver or a collateral access agreement, as defined below)applicable, in form and substance reasonably acceptable satisfactory to the Collateral AgentLender, with respect to each of the Material Leases set forth on Schedule III to the Security Agreement (as defined in the Term Loan Credit Agreement), duly executed by each landlord, bailee, warehouseman, or other Person counterparty to such Material Lease, as applicable.
(vif) On Within one hundred and twenty (120) days of the Closing Date (or prior such later date as determined by the Lender in its reasonable discretion), the Lender shall have received evidence reasonably satisfactory to it that the Loan Parties have caused Xxxxx Fargo Bank to be the principal depository bank of each Loan Party, including for the maintenance of all operating, collection, disbursement and other deposition accounts and for cash management services. The Loan Parties shall keep Xxxxx Fargo Bank as its principal depository bank during the term of this Agreement.
(g) Within ten (10) days of the Closing Date (or such later date as determined by the Lender in its sole discretion), the Lender shall have received a customary opinion of outside counsel to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below)Loan Parties, in form and substance reasonably acceptable satisfactory to the Collateral AgentLender.
(viih) On or prior to the fifth Within ten (5th10) calendar day after the date hereof, each days of the Other Investors and Closing Date (or such later date as determined by the Company Lender in its sole discretion), Borrower shall have deliver or cause to be delivered to Lender evidence reasonably satisfactory to Lender of the termination of (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counselthat certain Receivables Purchase Agreement, dated as of May 7, 2015, by and among Inco Services, Inc., a Georgia corporation, JPMorgan Chase Bank, N.A., and the Closing Dateother parties thereto and (ii) that certain UCC-1 filing, filed and recorded on May 13, 2015 at the Georgia Superior Court Clerks’ Cooperative Authority with File Number 000-0000-000000 in substantially the form favor of Exhibit H attached hereto.JPMorgan Chase Bank, N.A.
(ixi) On or prior to the fifth Within ten (5th10) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing DateDate (or such later date as determined by the Lender in its sole discretion), Borrower shall deliver or cause to be delivered to Lender evidence reasonably satisfactory to Lender of the termination of that certain State Tax Lien Filing in the Commonwealth of Kentucky against Midwest Environmental Inc., Lien No. 20170672, recorded on July 24, 2017 by the Kentucky Division of Unemployment Insurance with Document No. 1598393.
Appears in 1 contract
Post-Closing Covenants. (i) On With respect to (A) any newly-acquired Unencumbered Parcel with a gross book value in excess of $3,000,000, or prior (B) any Unencumbered Parcel owned by any Obligor as of the Closing Date in which any such Obligor has invested such that the gross book value of the land and any buildings thereon after the investment is completed is greater than $3,000,000, the Obligors shall deliver to five the Agent, within 45 days after the closing of any such acquisition in clause (A) above or of any such investment in clause (B) above with respect to such property, the following, each dated such day (unless otherwise specified) in form and substance satisfactory to the Agent: deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in form reasonably satisfactory to the Agent (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”), duly executed by the appropriate Obligor, together with:
(1) evidence that counterparts of the Mortgages have been duly recorded in all filing or recording offices that the Agent may reasonably deem necessary or desirable in order to create a valid third and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties having the priority contemplated by the Intercreditor and Subordination Agreements, and that all filing and recording taxes and fees have been paid,
(2) fully paid American Land Title Association Lender’s Extended Coverage mortgagee title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amount reasonably acceptable to the Collateral Agent, issued, coinsured and reinsured by title insurers acceptable to the Collateral Agent, insuring the Mortgages to be valid third and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and Liens having the priority contemplated by the Intercreditor and Subordination Agreements, and providing for such other affirmative insurance (including endorsements for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Collateral Agent may reasonably deem necessary or desirable,
(3) American Land Title Association form surveys, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Collateral Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Collateral Agent,
(4) the Assignments of Leases and Rents referred to in the Mortgages, duly executed by the appropriate Obligor,
(5) calendar such consents and agreements of lessors and other third parties, and such estoppel letters and other confirmations, as the Agent may reasonably deem necessary or desirable,
(6) evidence of the insurance required by the terms of the Mortgages, and
(7) evidence that all other action that the Agent may deem reasonably necessary or desirable in order to create valid third and subsisting Liens on the property described in the Mortgages has been taken.
(ii) With respect to (A) any newly-acquired Unencumbered Parcel with a gross book value in excess of $1,000,000 but less than $3,000,000, or (B) any Unencumbered Parcel owned by any Obligor as of the Closing Date in which any such Obligor has invested such that the gross book value of the land and any buildings thereon after the investment is completed is in excess of $1,000,000 but less than $3,000,000, the Obligors shall deliver to the Agent, within 45 days after the closing of any such acquisition in clause (A) above or of any such investment in clause (B) above with respect to such property, the following, each dated such day (unless otherwise specified) in form and substance satisfactory to the Agent: deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in form reasonably satisfactory to the Agent, together with evidence that counterparts of any such mortgages have been duly recorded in all filing or recording offices that the Agent may reasonably deem necessary or desirable in order to create a valid third and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid.
(iii) With respect to the Davidson County switch property located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, the Obligors shall deliver to the Agent, within 30 days after the Closing Date, Fourth Third LLC shall have duly executed deeds of trust, trust deeds, mortgages, leasehold mortgages and delivered leasehold deeds of trust, as applicable, in form reasonably satisfactory to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall together with evidence that counterparts of such mortgage have been consummated duly recorded in accordance with all filing or recording offices that the terms of Agent may reasonably deem necessary or desirable in order to create a valid third and subsisting Lien on the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent property described therein in favor of the Collateral Agent), (B) PNG shall have appointed Agent for the individuals set forth on Table I benefit of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG Secured Parties and the Company shall have duly executed that all filing and delivered to the Investor that certain Voting Agreement recording taxes and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall fees have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investorpaid.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. (i) On or prior to five (5) calendar days after 9.1 Phototron acknowledges that the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to agreements contained in this Section 9.1 are an integral part of the transactions contemplated hereby by this Agreement and that, without these agreements, CLG would not enter into this Agreement. Phototron acknowledges and agrees that the failure by CLG or Phototron to satisfy, perform and comply with the covenants set forth in this Section 9.1 (“Post-Closing Covenants”) following the Closing will have a material adverse effect on CLG. During the period beginning upon the Closing and ending on the first anniversary of the Closing, each of Phototron and CLG shall satisfy, perform, and comply with those of the following covenants as applicable:
9.1.1 CLG shall remain a Section 12(g) reporting company in compliance with and current in its reporting requirements under the Share Exchange Agreement each Act, and remain quoted on, at a minimum, the OTCBB;
9.1.2 CLG shall (a) certify in a form reasonably acceptable writing to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms any person holding restricted shares of CLG Common Stock as of the Share Exchange date of this Agreement without any amendment, modification or waiver thereof (except with the prior written consent that CLG has filed all of the Collateral Agentreports required to be filed by it under the Exchange Act to enable such person to sell such person’s restricted stock under Rule 144 or 145 promulgated under the Securities Act (including any rule adopted in substitution or replacement thereof) (“Rule 144 or 145”), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, applicable in the opinion of the Collateral Agentcircumstances, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Datewill inform such person in writing that it has not filed any such report or reports, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed upon being informed in writing by the Investorsuch person of its intent to sell any shares under Rule 144 or Rule 145, shall cover and (b) if any certificate representing any restricted shares of the Collateral (as defined CLG Common Stock is presented to CLG’s transfer agent for registration of transfer in the Security Documents) and the results of searches connection with any sale theretofore made or to be made under Rule 144 or 145, provided such certificate is duly endorsed for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing transfer by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notesappropriate person(s) or (yaccompanied by a separate stock power duly executed by the appropriate person(s) be accompanied in each case with evidence reasonable assurances that such Liens have been terminated.
endorsements are genuine and effective, and is accompanied by an opinion of counsel satisfactory to CLG and its counsel that such transfer has complied with the requirements of Rule 144 or 145 (v) On “Opinion”), as the case may be, and is not restricted by any applicable state securities law requirement, promptly instruct the Transfer Agent to register such transfer and to issue one or prior more new certificates representing such shares to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes transferee and, if applicableappropriate under the provisions of Rule 144 or 145, as the Series B Notescase may be, identical to the Amended and Restated Primary Notes andstate securities law requirements, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On free of any stop transfer order or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.restrictive legend;
Appears in 1 contract
Post-Closing Covenants. (i) On or prior to five December 31, 2020 (5as reported no later than in Ultimate Parent’s 2020 Form 10-K) calendar days after (as such date may be extended in writing by the Closing DateOrigination Agent in its discretion), Fourth Third LLC the Loan Parties shall have duly executed remediated the material weakness identified in Ultimate Parent’s 2018 Form 10-K, and delivered from time to time upon the request of the Origination Agent, the Loan Parties will provide updates as to the Investor and progress of such remediation; provided that, if such remediation has not been completed on or prior to December 31, 2019 (as reported no later than in Ultimate Parent’s 2019 Form 10-K), (x) the Company Borrowers shall be required to pay the intercreditor agreement and consent Post-Closing Fee pursuant to the transactions contemplated hereby terms of the Origination Agent Fee Letter and under (y) the Share Exchange Agreement each Applicable Margin shall be increased by 1.00% per annum (on a retroactive basis) for the period from January 1, 2020, until the date such material weakness is no longer either disclosed or required to be disclosed in a form reasonably acceptable to any of Ultimate Parent’s public filings with the Collateral AgentSEC.
(ii) On or prior Use commercially reasonable efforts to five deliver to the Agents no later than sixty (560) calendar days after the Closing Date, Effective Date (A) as such date may be extended in writing by the Share Exchange shall have been consummated Origination Agent in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agentits discretion), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investora Collateral Access Agreement, duly executed on behalf by all parties thereto, with respect to each of PNG and registered in the name location of the InvestorLoan Parties with respect to which a Collateral Access Agreement is required to be pursued by the Loan Parties pursuant to Section 7.01(l)(ii) (it being understood that the Origination Agent shall not impose a Landlord Reserve with respect to any such location until the expiration of such period).
(iii) On or prior to Within forty-five (545) calendar days after the Closing Date, Effective Date (as such period may be extended in accordance with writing by the terms of the Security DocumentsOrigination Agent in its discretion), the Company Loan Parties shall have delivered provide satisfactory evidence to the Agents that the Existing Letters of Credit have been replaced by letters of credit issued under the Revolving Facility Agreement and that the L/C Cash Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise Account has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Documentbeen closed.
(iv) On or prior to five Within sixty (560) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm Effective Date (as such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed period may be extended in writing by the InvestorOrigination Agent in its discretion), the Loan Parties shall cover any of (A) provide satisfactory evidence to the Agents that the Loan Parties have moved their primary banking relationships from Fifth Third Bank to Citizens Bank and (B) cause to be delivered to the Agents a Control Agreement, in form and substance satisfactory to the Origination Agent and the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its propertyAgent, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to each of the Loan Parties’ deposit accounts (other than any Permitted Liens (as defined in the Amended and Restated Primary NotesExcluded Accounts) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminatedat Citizens Bank.
(v) On or prior Use commercially reasonable efforts to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, cause each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants Specified Financing Statements to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder terminated within ninety (other than the Proportionate Changes).
(viii90) On or prior to the fifth (5th) calendar day days after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated Effective Date (as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged such period may be extended in writing by the Company's transfer agentOrigination Agent in its discretion).
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. (a) On or before the sixtieth (60th) day following the Closing Date (or such later date as Agent shall agree in its sole discretion):
(i) On or prior cause Patent No. D471729 (App. No. 29147210 for “Four Legged Chair”), Trademark Reg. No. 0,740,021 (MARTEST), and Trademark Reg. No. 4,040,857 (PLANSCAPE) the chain of title records in the Patent and Trademark Office to five (5) calendar days after properly reflect VMC as the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.registered owner of all such Intellectual Property; and
(ii) On or prior deliver to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable satisfactory to Agent, a Phase II environmental assessment in respect of the Collateral AgentReal Property of Borrowers located at 0000 Xxxxx Xxxxxx, Conway, AR 72034.
(vib) On or prior before the ninetieth (90th) day following the Closing Date (or such later date as Agent shall agree in its sole discretion) deliver to Agent a credit card processor agreement in form and substance acceptable to Agent for (i) credit card receivables processed by Discover and (ii) credit card receivables processed by American Express.
(c) No later than thirty (30) days after Agent’s written request therefor (or such later date as Agent shall agree in its sole discretion), deliver each of the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below)following items, in form and substance reasonably acceptable satisfactory to Agent and Lenders, with respect to the Collateral Agent.Real Property of Borrowers located at 0000 Xxxxx Xxxxxx, Conway, AR 72034:
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) an executed the Other Agreements, Mortgage in respect of such Real Property;
(ii) the Releases, a survey for such Real Property; and
(iii) satisfied or waived all conditions a fully paid mortgagee title insurance policy, in standard ALTA form, issued by a title insurance company reasonably satisfactory to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge WarrantsAgent, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants in an amount equal to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other not less than the Proportionate Changes).
(viii) On or prior fair market value of such Real Property, insuring such Mortgage to the fifth (5th) calendar day after the date hereof, the Investor create a valid Lien on such Real Property with no exceptions that Agent shall not have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged approved in writing by the Company's transfer agentand no survey exceptions.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Virco MFG Corporation)
Post-Closing Covenants. Until the consummation of a ---------------------- Qualified Public Offering, the Company will deliver to each holder of at least 60,000 shares of Series C Preferred Stock and/or Conversion Shares:
(i) On or prior to five as soon as available, but in any event within ninety (590) calendar days after the Closing Dateend of each fiscal year of the Company, Fourth Third LLC a copy of the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related audited statements of consolidated income, stockholders' equity and changes in financial position of the Company and its Subsidiaries for such fiscal year, setting forth in each case (after the first full fiscal year of the Company) in comparative form the figures for the previous year which shall have duly executed be prepared in accordance with GAAP applied consistently throughout the periods reflected therein and delivered reported on without any qualification as to the Investor and scope of the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.audit by independent certified public accountants of nationally recognized standing;
(ii) On or prior to five as soon as available but in any event within thirty (530) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms end of each calendar month of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent Company such monthly reports as are presented to management of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I Company or any of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investorits Subsidiaries.
(iii) On or No later than thirty (30) days prior to five (5) calendar days after the Closing Datestart of each fiscal year, in accordance with an annual business plan setting forth the terms anticipated strategic business activities and goals of the Security DocumentsCompany and its Subsidiaries, including an expected annual budget and operating plan (containing projections of operating results) for the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s and its Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to As soon as available, but in any event within forty-five (545) calendar days after the Closing Dateend of each semi-annual fiscal period of the Company, an update to the monthly projections contained in the annual budget, operating plan and business plan furnished by the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the InvestorPurchasers pursuant to subsection (iii) above;
(v) promptly upon receipt thereof, true copies of UCC search results, listing all effective financing statements which name as debtor final reports submitted to the Company or any of its Subsidiaries filed by independent certified public accountants in connection with each annual, interim or special audit of the prior five years to perfect an interest in any assets thereof, together with copies books of such financing statements, none the Company or of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined its Subsidiaries made by such accountants, including, without limitation, any final comment letter submitted by such accountants to management in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except connection with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.their annual audit;
(vi) On promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, made available generally by the Company shall have to all of its security holders in their capacity as such or by any Subsidiary of the Company to its security holders, other than the Company, and of all regular and periodic reports and all final registration statements and final prospectuses, if any, filed an amended and restated Certificate by the Company or any of Incorporation its Subsidiaries with any securities exchange or with the Secretary SEC or any Governmental Authority succeeding to any of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.its functions;
(vii) On or as soon as available, but in any event within thirty (30) days after the end of each month and within ten (10) days prior to each regularly scheduled meeting of the fifth (5th) calendar day after Board of Directors of the Company, a narrative report prepared by the President of the Company detailing the activities, business developments, operating results and marketing efforts of the Company and its Subsidiaries since the date hereof, each of the Other Investors and previous such report delivered by the Company shall have pursuant to this subsection (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes vii); and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached heretosuch other information reasonably requested by such Purchaser.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Series C Convertible Preferred Stock Purchase Agreement (Ifx Corp)
Post-Closing Covenants. (ia) On or prior to five Within thirty (530) calendar days after the Closing DateTradein Obligor Date (or such longer period as approved by the Agent), Fourth Third LLC Borrower shall have used commercially reasonable efforts to obtain a duly executed Lien Waiver in form and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form substance reasonably acceptable to Agent from the Collateral Agentlessor of its facility located at 4000 Xxx Xxxxxxx, Suite 104, San Antonio, Texas.
(iib) On or prior to five Within thirty (530) calendar days after the Closing Date, Tradein Obligor Date (A) or such longer period as approved by the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG Borrower shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) used commercially reasonable efforts to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name obtain an acknowledgement of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the CompanyAgent’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements Lien on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below)Tradein Expert’s assets, in form and substance reasonably acceptable to the Collateral Agent, from each auction house utilized by Tradein Expert.
(vic) On or prior to the seventy-seventh Within ten (77th10) calendar day Business Days after the Stockholder Approval DateTradein Obligor Date (or such longer period as approved by the Agent), the Company Borrower shall have filed an amended caused the cash management and restated Certificate deposit account structure of Incorporation Tradein Expert to comply with the Secretary terms of State the Loan Agreement, which shall include, without limitation, (i) the establishment of Delaware effecting Deposit Accounts with automatic sweeps to Borrower’s Dominion Account and (ii) the Reverse Stock Split delivery of duly executed blocked or springing (as defined belowdetermined by Agent) Deposit Account Control Agreements with respect to all of Tradein Expert’s Deposit Accounts (other than Excluded Accounts), in each case, with financial institutions reasonably satisfactory to Agent and otherwise in form and substance reasonably acceptable to Agent; provided, that from and after the Collateral AgentTradein Obligor Date until the above requirements are satisfied, Tradein Expert shall instruct each applicable financial institution to provide for a daily manual sweep from each of Tradein Expert’s Deposit Accounts to Borrower’s Dominion Account.
(viid) On or prior The failure of Borrower to the fifth comply with paragraph (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreementsa), (iib) or (c) above shall constitute an immediate Event of Default under the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes)Loan Agreement.
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Loan, Security and Guarantee Agreement (AutoWeb, Inc.)
Post-Closing Covenants. (ia) On or prior With respect to five the [***] Fund, Borrower shall, within sixty (560) calendar days after following the Closing Date, Fourth Third LLC shall have duly executed and delivered deliver to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in Administrative Agent a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly fully executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, a Partnership Flip Back-Up Servicing Agreement for such Partnership Flip Fund substantially in the form of Exhibit L attached heretoE or a Partnership Flip Transition Management Agreement in the form of Exhibit F.
(b) With respect to the [***] fund, which instructions the Borrower shall, within sixty (60) days following the Closing Date, deliver to the Administrative Agent a fully executed copy of an amendment to the applicable Limited Liability Company Agreement (i) amending the reference to Section 5.02(c) in Section 12.02(a)(v) of such Limited Liability Company Agreement to be a reference to Section 5.02(b) and (ii) clarifying that a foreclosure by creditors (or a disposition in lieu of foreclosure) in respect of the membership interests of the applicable Tax Equity Holdco or any direct or indirect parent of the applicable Tax Equity Holdco shall have been delivered to not constitute a “Change of Member Control” and acknowledged in writing by is otherwise permitted without the Company's transfer agentconsent of the Tax Equity Class A Members under such Tax Equity Limited Liability Company Agreement.
(xc) On With respect to the [***] fund, the Borrower shall, within sixty (60) days following the Closing Date, deliver to the Administrative Agent a fully executed copy of an amendment to the applicable Limited Liability Company Agreement amending the reference to Section 5.01(b) in Section 12.02(a)(vi) of such Limited Liability Company Agreement to be a reference to Section 5.02(b).
(d) Within ninety (90) days following the last day of the Availability Period, deliver to the Administrative Agent each Customer Agreement relating to Eligible Projects in the Project Pool that was not previously delivered to the Administrative Agent pursuant to Section 9.01(a)(xi) or 9.02(b)(iii).
(e) With respect to each of the [***] Fund, [***] Fund and [***] Fund, Borrower shall use commercially reasonable efforts to, within six (6) months following the Closing Date, deliver to the Administrative Agent a fully executed copy of an amendment to the [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. Tax Equity Limited Liability Company Agreement of such Partnership Flip Opco, that either (A) provides that (i) the members of such Partnership Flip Opco acknowledge that Subchapters C and D of Chapter 63 of the Code have been repealed, and that Chapter 63 of the Code has been amended, by Section 1101 of the Budget Act, to be effective with respect to taxable years beginning after December 31, 2017; (ii) the members of such Partnership Flip Opco agree to cooperate, reasonably and in good faith, to take such action on or prior to the fifth (5th) calendar day effective date of Section 1101 of the Budget Act as reasonably necessary to preserve and retain after the effective date hereofof Section 1101 of the Budget Act (and any Further Guidance), to the extent possible, the substantive arrangement and relative and analogous rights, duties, indemnities, responsibilities, risks, and obligations of the applicable Tax Equity Holdco and Tax Equity Class A Members reflected in such Tax Equity Limited Liability Company shall Agreement with respect to tax audits and other administrative procedures addressed by Section 1101 of the Budget Act; and (iii) no member of such Partnership Flip Opco may make or cause such Partnership Flip Opco to make any election under Section 1101(g)(4) of the Budget Act or any subsequent law or guidance to have delivered the provisions of Section 1101 of the Budget Act apply to such Partnership Flip Opco prior to the Investor a letter from the Company’s transfer agent certifying the number effective date of shares of Common Stock outstanding as of a date within five days Section 1101 of the Closing DateBudget Act or (B) (i) incorporates any changes necessary to preserve and retain after the effective date of Section 1101 of the Budget Act (and any Further Guidance), to the extent possible, the substantive arrangement and relative and analogous rights, duties, indemnities, responsibilities, risks, and obligations of the applicable Tax Equity Holdco and Tax Equity Class A Members reflected in such Tax Equity Limited Liability Company Agreement with respect to tax audits and other administrative procedures addressed by Section 1101 of the Budget Act; and (ii) provides that no member of such Partnership Flip Opco may make or cause such Partnership Flip Opco to make any election under Section 1101(g)(4) of the Budget Act or any subsequent law or guidance to have the provisions of Section 1101 of the Budget Act apply to such Partnership Flip Opco prior to the effective date of Section 1101 of the Budget Act.
Appears in 1 contract
Samples: Credit Agreement (Sunrun Inc.)
Post-Closing Covenants. (ia) On or prior to five Within thirty (530) calendar days after of the Closing DateDate (or such later date as the Administrative Agent may agree in its sole discretion), Fourth Third LLC the Borrower shall have duly executed and delivered deliver to the Investor Administrative Agent copies of insurance policies, declaration pages, certificates, and endorsements of insurance or insurance binders evidencing liability, casualty, property, terrorism and business interruption insurance meeting the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each requirements set forth herein or in a form reasonably acceptable to the Collateral Documents or as required by the Administrative Agent.
(iib) On or prior to Within forty-five (545) calendar days after of the Closing DateDate (or such later date as the Administrative Agent may agree in its sole discretion), (A) the Share Exchange Administrative Agent shall have received evidence that all actions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement in respect of the stock or membership interests of the Borrower in Anika Therapeutics S.r.l., if any, shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification taken or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investormade.
(iiic) On or prior to five Within sixty (560) calendar days after of the Closing Date, Date (or such later date as the Administrative Agent may agree in accordance with the terms of the Security Documentsits sole discretion), the Company Borrower shall have delivered deliver to the Collateral Administrative Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in each headquarters location of the Amended Loan Parties and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined beloweach other location required by Section 6.14(c), a landlord waiver and consent (in form and substance reasonably acceptable satisfactory to the Collateral Administrative Agent) from the landlords on such real property to the extent the Loan Parties are able to secure such landlord waiver and consent after using commercially reasonable efforts.
(vid) On or prior to the seventy-seventh Within ninety (77th90) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing DateDate (or such later date as the Administrative Agent may agree in its sole discretion), the Borrower shall to deliver to the Administrative Agent Qualifying Control Agreements with respect to each of the deposit accounts and securities accounts of the Loan Parties, in compliance with Section 6.14(d).
Appears in 1 contract
Post-Closing Covenants. (ia) On or prior to five (5) calendar Within 60 days after the Closing DateDate (or such later date as the Administrative Agent may specify in its sole discretion), Fourth Third LLC shall have duly (i) execute and deliver or cause to be executed and delivered to the Investor Collateral Agent, Mortgages covering the properties listed on Schedule 6.19 hereto, duly executed by the appropriate Loan Party, together with all instruments, documents and other agreements and evidence of the Company the intercreditor agreement and consent types referenced in clauses (A) through (H) of Section 6.12(iv) with respect to the transactions contemplated hereby applicable Mortgage and under the Share Exchange Agreement each in a form reasonably acceptable Mortgaged property, (ii) pledge to the Collateral Agent.
, pursuant to pledge agreements and other appropriate documents (iiincluding a separate guaranty if required) On or prior in form and substance reasonably satisfactory to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed all of the individuals set forth on Table I equity interests of Schedule 1(h)(iii) each foreign Subsidiary of the Borrower, to the offices set forth opposite their names on Table I extent owned by the Borrower or any Subsidiary of Schedule 1(h)(iii) attached heretothe Borrower, (C) PNG shall have appointed other than the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG Specified Foreign Subsidiaries and, in connection therewith, execute and the Company shall have duly deliver or cause to be executed and delivered to the Investor that certain Voting Agreement Collateral Agent and Irrevocable Proxies the Administrative Agent, in each case in form and substance reasonably satisfactory to the Agents, such opinions, corporate certificates and other documents as the Agents may reasonably require in connection therewith, (iii) such opinions of counsel, certificates and other corporate documents as may be required by the Administrative Agent with respect to the execution of the Subsidiary Guaranty or any other guaranty of the Obligations by any foreign Subsidiary of the Borrower, in each case in form attached hereto as Exhibit G and substance reasonably satisfactory to the Administrative Agent and (Div) the Investor PNG Note shall have been deliver or cause to be delivered to the InvestorCollateral Agent, duly executed on behalf of PNG and registered the promissory note dated July 6, 2007, made by Network Access Point del Caribe, S.A. in the name favor of the Investor.Borrower with an outstanding principal amount of $200,000; and
(iiib) On or prior to five (5) calendar Within 15 days after the Closing DateDate (or such later date as may be consented to by the Required Lenders (which consent may not be unreasonably withheld)), in accordance with the terms of the Security Documents, the Company shall have execute and deliver or cause to be executed and delivered to the Collateral Agent (i) certificates representing account control agreements with respect to all deposit accounts of the Company’s Subsidiaries’ shares of capital stock Loan Parties to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing required by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminatedAgreement.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: First Lien Senior Secured Credit Agreement (Terremark Worldwide Inc)
Post-Closing Covenants. (ia) On or prior to five (5) calendar days after From the Closing DateDate through the first anniversary of the Closing Date (as such date may be extended by the Administrative Agent and the Borrower), Fourth Third LLC each Loan Party shall have duly executed in good faith, consider all proposals by MUFG Union Bank, N.A. (and delivered its Affiliates, successors, and its successors’ affiliates (as applicable)) to act as such Loan Party’s primary depository bank, including for its principal operating, administrative, cash management, lockbox arrangements, collection activity, and other deposit accounts other than Excluded Accounts for the conduct of its business. Within ninety (90) days of the Closing Date or the closing date of the applicable Permitted Acquisition, as applicable (in each case, as such date may be extended by the Administrative Agent in its sole discretion) and at all times thereafter, all deposit accounts, other than Excluded Accounts of the Loan Parties, not held at MUFG Union Bank, N.A. (or one of its Affiliates) shall be subject to deposit account control agreements in favor of Administrative Agent on terms reasonably satisfactory to Administrative Agent (all such deposit accounts subject to a deposit account control agreement being hereinafter collectively referred to as the “Assigned Accounts”). Each Loan Party shall make such arrangements as may be reasonably requested by the Administrative Agent to assure that all proceeds of the Collateral are deposited (in the same form as received) in one or more Assigned Accounts. Any proceeds of Collateral (other than cash and Investments, in each case, permitted to be Disposed of in accordance with this Agreement) received by any Loan Party shall be promptly deposited into an Assigned Account and, until so deposited, shall be held by it in trust for the Administrative Agent and the Lenders. Each Loan Party acknowledges and agrees that pursuant to the Investor Security Agreement, the Administrative Agent has (and the Company the intercreditor agreement and consent is hereby granted to the transactions contemplated hereby extent it does not already have) a Lien on each Assigned Account and under all funds contained therein to secure the Share Exchange Agreement each Secured Obligations. The Administrative Agent agrees with the Loan Parties that if and so long as no Event of Default has occurred or is continuing, amounts on deposit in a form reasonably acceptable the Assigned Accounts will (subject to the Collateral Agentrules and regulations as from time to time in effect applicable to such demand deposit accounts) be made available to the relevant Loan Party for use in the conduct of its business. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, apply the funds on deposit in any and all such Assigned Accounts to the Secured Obligations whether or not then due.
(iib) On or prior to five Within thirty (530) calendar days after of the Closing Date, Date (A) as such date may be extended by the Share Exchange shall have been consummated Administrative Agent in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agentits sole discretion), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company Borrower shall have delivered to the Collateral Administrative Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable satisfactory to the Collateral Administrative Agent, an additional insured endorsement with respect to each liability insurance certificate delivered by the Loan Parties to the Administrative Agent on the Closing Date and a lender’s loss payee endorsement with respect to each property insurance certificate delivered by the Loan Parties to the Administrative Agent on the Closing Date.
(vic) On or prior to before June 30, 2022 (as such date may be extended by the seventy-seventh (77th) calendar day after the Stockholder Approval DateAdministrative Agent in its sole discretion), the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company Borrower shall have delivered to the Investor a copy of Administrative Agent satisfactory evidence that the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall Indiana Subsidiaries have been delivered to and acknowledged in writing by the Company's transfer agentdissolved.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. The Borrower shall satisfy each of the following to the reasonable satisfaction of the Administrative Agent (iacting at the direction of the Required Lenders), in each case, by no later than the date specified below for such conditions (or such later date as the Administrative Agent (acting at the direction of the Required Lenders) On or prior to five shall agree in its sole but reasonable discretion):
(5a) calendar days after Within one (1) Business Day following the Closing Date, Fourth Third LLC the Loan Parties shall have duly executed and delivered deliver to the Investor and Administrative Agent evidence of the Company submission of each of the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each filings referenced in a form reasonably acceptable to the Collateral Agentclause (b) below.
(b) Within ten (10) Business Days following the Closing Date, the Loan Parties shall deliver to the Administrative Agent evidence that (i) the liens with respect to the Israeli Loan Parties pursuant to the Existing SVB Credit Facility and registered with the Registrar of Companies or the Registrar of Patents (if applicable) were removed, (ii) On or prior certificates of registration of the Debentures issued by the Israeli Registrar of Companies, and (iii) evidence of registration of the fixed Debenture with the Registrar of Patents (if applicable).
(c) Within thirty (30) days following the Closing Date, the Loan Parties shall deliver to the Administrative Agent a customary executed legal opinion of Texas counsel to the Loan Parties in form and substance reasonably satisfactory to the Required Lenders.
(d) Within forty-five (545) calendar days following the Closing Date, the Loan Parties shall deliver to the Administrative Agent amendments, in form and substance reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders), to the operating agreement of each Group Member that is a limited liability company and whose Capital Stock is pledged as Collateral.
(e) Within forty-five (45) days following the Closing Date, (i) the Loan Parties shall deliver to the Administrative Agent the insurance endorsements (w) naming the Administrative Agent, on behalf of the Secured Parties, as additional insured with respect to each policy of liability insurance, (x) naming the Administrative Agent, on behalf of the Secured Parties, as loss payee with respect to each policy of property insurance, (y) providing that the insurer shall give the Administrative Agent, on behalf of the Secured Parties, at least thirty (30) days’ notice before canceling or declining to renew its policy and at least ten (10) days’ notice of any non-payment of premiums, and (z) reasonably acceptable in other 110 #97570842v91
(f) Within sixty (60) days after the Closing Date, (Ai) the Share Exchange Loan Parties shall have been consummated deliver to the Administrative Agent the Control Agreements for each Deposit Account and Securities Account of a Loan Party held at a financial institution in accordance with the terms United States as of the Share Exchange Agreement without any amendment, modification or waiver thereof Closing Date (except other than Excluded Accounts; and it being understood that the Control Agreements with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) respect to the offices set forth opposite their names Guaranty Accounts established on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG or about the Closing Date shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and be delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after substantially concurrently with the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I each Israeli Loan Party shall use commercially reasonable efforts to be duly filed provide Administrative Agent with acknowledgements from each Israeli bank at which it maintains a Deposit Account or Securities Account (other than any Excluded Accounts) with respect to the creation of a first priority (except as expressly permitted by Section 7.3) security interest and Lien in favor of the Administrative Agent over such office or offices as may be necessary oraccounts, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise forms agreed to in writing by the Collateral Agent such banks and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to Administrative Agent (acting at the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each direction of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate ChangesRequired Lenders).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. (i) On or prior before the thirtieth (30th) day following the Joinder Agreement No. 2 Effective Date (or such later date, not to five exceed thirty (530) calendar days after additional days, as the Closing Date, Fourth Third LLC shall have duly executed and delivered Series A Incremental Administrative Agent may agree to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agentits reasonable discretion), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock solely to the extent such subsidiary is any Series A Incremental Term Loan or any obligations and liabilities (other than contingent indemnification obligations as to which no claim has been asserted) in connection therewith remain unpaid or unsatisfied, the Series A Incremental Administrative Agent shall receive the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion Responsible Officer of the Collateral Agent, desirable to perfect signing Loan Party (other than the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies opinions of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documentscounsel) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), each in form and substance reasonably acceptable satisfactory to the Collateral Series A Incremental Administrative Agent.:
(via) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate opinions of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), local counsel in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors following jurisdictions: Delaware, Illinois, Minnesota, Nebraska, New York and the Company shall have Ohio; and
(ib) executed the Other Agreements(x) such certificates of resolutions or other action, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder incumbency certificates and/or other certificates of Responsible Officers of each Loan Party (other than the Proportionate ChangesBorrower).
, as the Series A Incremental Administrative Agent may reasonably require (viiiA) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H certifying that attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor thereto is a true and complete copy of the Irrevocable Transfer Agent Instructionsresolutions or written consents of the governing body of such Loan Party authorizing the execution, delivery and performance of this Agreement, and that such resolutions or written consents have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, (B) identifying by name and title and bearing the form signatures of Exhibit L the officers or authorized signatories of each Loan Party authorized to sign this Agreement and (C) certifying (I) that attached heretothereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent), which instructions shall have been delivered to and acknowledged in writing of each Loan Party, certified by the Company's transfer agent.
relevant authority of the jurisdiction of organization of the such Loan Party, and a true and correct copy of its bylaws and (xII) On that such documents or prior agreements have not been amended (except as otherwise attached to such certificate and certified therein as being the fifth only amendments thereto as of such date) and (5thy) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding good standing (or equivalent) certificate as of a recent date within five days for each Loan Party, from the relevant authority of the Closing Dateits jurisdiction of organization.
Appears in 1 contract
Post-Closing Covenants. 10.1 VMdirect acknowledges that the agreements contained in this Section 10.1 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, Qorus would not enter into this Agreement. The parties hereto acknowledge and agree that the failure by Qorus or VMdirect to satisfy, perform and comply with the covenants set forth in this Section 10.1 ("Post-Closing Covenants") following the Closing will have a material adverse effect on Qorus and the investment of KRM Fund in Qorus. During the period beginning upon the Closing and ending on the first anniversary of the Closing, Qorus agrees to:
(a) Utilize its commercially reasonable efforts to, and VMdirect agrees to utilize its commercially reasonable efforts to cause Qorus to, remain a Section 12(g) reporting company in compliance with and current in its reporting requirements under the Exchange Act, and to remain quoted on, at a minimum, the OTC Bulletin Board; and
(b) (i) On or prior Certify in writing to five (5) calendar days after any person holding restricted shares of Qorus Common Stock as of the Closing Date, Fourth Third LLC shall have duly executed and delivered date of this Agreement that Qorus has filed all of the reports required to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and be filed by it under the Share Exchange Agreement each in a form reasonably acceptable Act to the Collateral Agent.
(ii) On enable such person to sell such person's restricted stock under Rule 144 or prior to five (5) calendar days after the Closing Date145, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, applicable in the opinion of the Collateral Agentcircumstances, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Dateinform such person in writing that it has not filed any such report or reports, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed upon being informed in writing by such person of its intent to sell any shares under Rule 144 or Rule 145 promulgated under the Investor, shall cover Securities Act (including any of the Collateral (as defined rule adopted in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person substitution or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined belowreplacement thereof), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) if any certificate representing any restricted shares of Qorus Common Stock is presented to Qorus' Transfer Agent for registration of transfer in connection with any sale theretofore made or to be made under Rule 144 or 145, provided such certificate is duly endorsed for transfer by the Releasesappropriate person(s) or accompanied by a separate stock power duly executed by the appropriate person(s) in each case with reasonable assurances that such endorsements are genuine and effective, and is accompanied by an opinion of counsel satisfactory to Qorus and its counsel that such transfer has complied with the requirements of Rule 144 or 145 ("Opinion"), as the case may be, promptly instruct the Transfer Agent to register such transfer and to issue one or more new certificates representing such shares to the transferee and, if appropriate under the provisions of Rule 144 or 145, as the case may be, free of any stop transfer order or restrictive legend, and (iii) satisfied in the event Qorus or waived all conditions its counsel is unwilling or unable to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (accept an Opinion from counsel other than Qorus' counsel, and in the Proportionate Changesevent that Qorus' counsel is unwilling to issue an Opinion regarding the same transfer, Qorus hereby agrees to accept, and shall instruct its counsel to accept, an Opinion of Xxxxxxxx Xxxxxx (New York, New York) or such other reasonable counsel selected by KRM Fund, which Opinion shall expressly provide that Qorus may rely upon such Opinion, and Qorus and its counsel shall hereby authorize the Transfer Agent to accept the opinion of Xxxxxxxx Xxxxxx (or such other reasonable counsel selected by KRM Fund) for such purposes ("Transfer Agent Authorization")., which Transfer Agent Authorization shall be delivered to Transfer Agent prior to Closing, with a copy to KRM Fund; and
(viiic) On or prior to Comply with the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as terms and conditions of the Closing Date, in substantially the form of Exhibit H attached heretoAftermarket Support Agreement.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Exchange Agreement (Qorus Com Inc)
Post-Closing Covenants. (i) On or prior to five Within sixty (560) calendar days after following the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
Date (ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) such longer period as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and except the Lenders:
(A) fully executed and notarized Mortgage Instruments in recordable form sufficient to create a first priority security interest (subject to certain existing Liens existing as of the Closing Date and set forth on Schedule 1.1(b)) in each of the Mortgaged Properties encumbering the Mortgaged Properties for the benefit of the Secured Parties (it being agreed that no leasehold deeds of trust, leasehold trust deeds, leasehold deeds to secure debt or leasehold mortgages shall be required under this Agreement);
(B) a title report in respect of each of the Mortgaged Properties;
(C) copies of all title insurance policies in the possession of the Borrowers which are outstanding and enforceable with respect to the Mortgaged Properties; and
(D) to the extent requested by the Administrative Agent, opinions of counsel to the Credit Parties and their Subsidiaries for each jurisdiction in which the Mortgaged Properties are located; provided, however, that with respect to the real properties of any Credit Party or its Subsidiaries located in the State of New York and owned on the Closing Date, no Mortgage Instrument shall be required hereunder and such real properties shall not be Mortgaged Properties under this Agreement.
(ii) Within sixty (60) days following the Closing Date (or such longer period as agreed to in writing by the Administrative Agent in its sole discretion), the Credit Parties shall establish and maintain their primary banking relationship (including, without limitation, the establishment of transaction-related bank accounts, main operating accounts and treasury management and investment accounts) with Citizens.
(iii) Within forty-five (45) days following the Closing Date (or such longer period as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received copies of endorsements with respect to the Credit Parties’ liability, casualty, property and business interruption insurance meeting the requirements set forth herein or in the Security Documents. The Administrative Agent shall be named (i) as lenders’ loss payee, as its interest may appear, with respect to any Permitted Liens such insurance providing coverage in respect of any Collateral and (ii) as defined in the Amended and Restated Primary Notes) shall either (x) not show additional insured, as its interest may appear, with respect to any such Liens insurance providing liability coverage, and the Credit Parties will use their commercially reasonable efforts to have each provider of any such insurance agree, by endorsement upon the policy or policies issued by it or by independent instruments to be furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or cancelled.
(iv) Within thirty (30) days after the Closing Date (or such longer period of time as defined agreed to in writing by the Amended Administrative Agent in its sole discretion), the Administrative Agent shall have received Deposit Account Control Agreements and Restated Primary Notes) or (y) Securities Account Control Agreements required to be accompanied delivered in accordance with evidence that such Liens have been terminatedSection 6.14.
(v) On To the extent not delivered on the Closing Date, within forty-five (45) says after the Closing Date (or prior such longer period of time as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received stock or membership certificates, evidencing the Equity Interests pledged to the second Administrative Agent pursuant to the Pledge Agreement and undated stock or transfer powers duly executed in blank.
(2ndvi) calendar day Within forty-five (45) days after the Stockholder Approval DateFirst Amendment Effective Date or such longer period of time as agreed to in writing by the Administrative Agent in its sole discretion), the Company Administrative Agent shall have filed an amended and restated Certificate received owner’s title policies with respect to each of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined belowproperties set forth on Schedule 5.16(e), in each case, in form and substance reasonably acceptable satisfactory to the Collateral Administrative Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. (i) On or prior to five (5) calendar days The Company shall list the Shares on the Oslo Stock Exchange as soon as practicable after the Closing Date, Fourth Third LLC shall Shares have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and been registered for resale under the Share United States Securities Act of 1933, as amended (“Securities Act”) or are otherwise freely tradeable through the facilities of the Oslo Stock Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with Rule 904 of Regulation S (“Regulation S”) promulgated by the terms U.S. Securities and Exchange Commission (“SEC”) under the Securities Act. Delivery of the Share Exchange Agreement without any amendmentShares: At such time as the Company has received gross proceeds from the sale of 13 million shares of Common Stock or such fewer number of Shares as it deems appropriate (but not less than USD$5 million in gross proceeds of sale) and such shares have been listed on the AMEX, modification the Company will instruct its Stock Transfer Agent to issue and deliver one or waiver thereof more stock certificates evidencing the Shares to Bxxxx Brothers Hxxxxxxx & Co., 100 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000 Attention: Free Receive, Trade Processing Department, Telephone No.: (except with the prior written consent of the Collateral Agent000) 000 0000, as custodian for DnB NOR Bank ASA, Registrars Department 16 (“DnB”), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of Bxxxx Brothers Hxxxxxxx & Co., as nominee for the InvestorPurchaser, to be held by DnB on behalf of the Purchaser at such Purchaser’s risk of loss. By contacting DnB NOR Bank ASA, Registrars Departement, Axxx Brygge A0, 0000 Xxxx, Xxxxxx, Telephone No.
: (iii+00) On 00 00 00 00, the Purchaser may request that a stock certificate (imprinted with an appropriate restrictive legend) for his, her or prior its subscribed and allocated Shares is sent to five the Purchaser. At such time as the Shares are registered for resale under the Securities Act or at the end of the Restricted Period (5as defined blow), whichever comes first, the Company will instruct DnB to transfer the subscribed for Shares which continue to be held by DnB to Purchaser’s relevant VPS account (as stipulated herein) calendar days after with the Company’s ISIN NO for its ordinary shares. If the Purchaser has previously requested delivery and received stock certificates evidencing his, her or its subscribed for Shares, as mentioned in the preceeding sentence, the Purchaser will be required to resubmit such stock certificates, at the Purchaser’s sole risk and expense, to DnB in order to have them registered in the Purchaser’s VPS account. A purchaser or other transferee of Shares who acquired ownership of his Shares from the Purchaser during the Restricted Period may be required by the Company to furnish an opinion of counsel and such other documentation as described in the section entitled “Restrictions on Resale” of Schedule 1 attached hereto and made a part hereof in order to register the transfer in the Company’s stock transfer books and to register such Shares in such person’s relevant VPS account. Subscription price: NOK 9.10 per Share. Minimum amount for subscription and allocation is €50,000 or currency equivalent. Payment instructions: Payment of the Total Subscription Price shall be made in a wire transfer of the subscribed amount in immediately available funds to Terra Securities ASA, to be held in escrow on behalf of the subscribers until the Closing Date, for deposit in accordance the above mentioned Agent’s bank account no 7050.05.54523 by no later than 27 September 2006. Delayed payment: On overdue payment, interest may be charged at 9.75% per annum. The Company reserves the right to cancel, reduce 26 and/or re-allocate the subscription regardless of the amount of the subscription or the order in which it was received or if the Purchaser fails to comply with the terms of payment instructions and to seek indemnity from the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches Purchaser for any tax lien resulting losses, damages, costs and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminatedexpenses.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. (i) On or prior to five Within sixty (560) calendar days after following the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
Date (ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) such longer period as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and except the Lenders:
(A) fully executed and notarized Mortgage Instruments in recordable form sufficient to create a first priority security interest (subject to certain existing Liens existing as of the Closing Date and set forth on Schedule 1.1(b)) in each of the Mortgaged Properties encumbering the Mortgaged Properties for the benefit of the Secured Parties (it being agreed that no leasehold deeds of trust, leasehold trust deeds, leasehold deeds to secure debt or leasehold mortgages shall be required under this Agreement);
(B) a title report in respect of each of the Mortgaged Properties;
(C) copies of all title insurance policies in the possession of the Borrowers which are outstanding and enforceable with respect to the Mortgaged Properties; and
(D) to the extent requested by the Administrative Agent, opinions of counsel to the Credit Parties and their Subsidiaries for each jurisdiction in which the Mortgaged Properties are located; provided, however, that with respect to the real properties of any Credit Party or its Subsidiaries located in the State of New York and owned on the Closing Date, no Mortgage Instrument shall be required hereunder and such real properties shall not be Mortgaged Properties under this Agreement.
(ii) Within sixty (60) days following the Closing Date (or such longer period as agreed to in writing by the Administrative Agent in its sole discretion), the Credit Parties shall establish and maintain their primary banking relationship (including, without limitation, the establishment of transaction-related bank accounts, main operating accounts and treasury management and investment accounts) with Citizens.
(iii) Within forty-five (45) days following the Closing Date (or such longer period as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received copies of endorsements with respect to the Credit Parties’ liability, casualty, property and business interruption insurance meeting the requirements set forth herein or in the Security Documents. The Administrative Agent shall be named (i) as lenders’ loss payee, as its interest may appear, with respect to any Permitted Liens such insurance providing coverage in respect of any Collateral and (ii) as defined in the Amended and Restated Primary Notes) shall either (x) not show additional insured, as its interest may appear, with respect to any such Liens insurance providing liability coverage, and the Credit Parties will use their commercially reasonable efforts to have each provider of any such insurance agree, by endorsement upon the policy or policies issued by it or by independent instruments to be furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or cancelled.
(iv) Within thirty (30) days after the Closing Date (or such longer period of time as defined agreed to in writing by the Amended Administrative Agent in its sole discretion), the Administrative Agent shall have received Deposit Account Control Agreements and Restated Primary Notes) or (y) Securities Account Control Agreements required to be accompanied delivered in accordance with evidence that such Liens have been terminatedSection 6.14.
(v) On To the extent not delivered on the Closing Date, within forty-five (45) says after the Closing Date (or prior such longer period of time as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received stock or membership certificates, evidencing the Equity Interests pledged to the second Administrative Agent pursuant to the Pledge Agreement and undated stock or transfer powers duly executed in blank.
(2ndvi) calendar day Within forty-five (45) days after the Stockholder Approval DateFirst Amendment Effective Date or such longer period of time as agreed to in writing by the Administrative Agent in its sole discretion), the Company Administrative Agent shall have filed an amended and restated Certificate received owner’s title policies with respect to each of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined belowproperties set forth on Schedule 5.16(e), in each case, in form and substance reasonably acceptable satisfactory to the Collateral Administrative Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each . article VI NEGATIVE COVENANTS Each of the Other Investors Credit Parties hereby covenants and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of agrees that on the Closing Date, and thereafter (a) for so long as this Agreement is in substantially effect, (b) until the form of Exhibit H attached hereto.
Commitments have terminated, (ixc) On or prior the Credit Party Obligations and all other amounts owing to the fifth (5th) calendar day after the date hereofAdministrative Agent or any Lender hereunder are paid in full in cash, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.that:
Appears in 1 contract
Post-Closing Covenants. Until the consummation of a ---------------------- Qualified Public Offering, the Company will deliver to each holder of at least 833,333 shares of Common Stock on an as-converted basis:
(i) On or prior to five as soon as available, but in any event within ninety (590) calendar days after the Closing Dateend of each fiscal year of the Company, Fourth Third LLC a copy of the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of such fiscal year and the related audited statements of consolidated income, stockholders equity and changes in financial position of the Company and its Subsidiaries for such fiscal year, setting forth in each case (after the first full fiscal year of the Company) in comparative form the figures for the previous year which shall have duly executed be prepared in accordance with GAAP applied consistently throughout the periods reflected therein and delivered reported on without any qualification as to the Investor and scope of the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.audit by independent certified public accountants of nationally recognized standing;
(ii) On or prior to five as soon as available but in any event within thirty (530) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms end of each calendar month of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent Company such monthly reports as are presented to management of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I Company or any of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investorits Subsidiaries.
(iii) On or No later than thirty (30) days prior to five (5) calendar days after the Closing Datestart of each fiscal year, in accordance with an annual business plan setting forth the terms anticipated strategic business activities and goals of the Security DocumentsCompany and its Subsidiaries, including an expected annual budget and operating plan (containing projections of operating results) for the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s and its Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to As soon as available, but in any event within forty-five (545) calendar days after the Closing Dateend of each semi-annual fiscal period of the Company, an update to the monthly projections contained in the annual budget, operating plan and business plan furnished by the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the InvestorPurchasers pursuant to subsection (iii) above;
(v) promptly upon receipt thereof, true copies of UCC search results, listing all effective financing statements which name as debtor final reports submitted to the Company or any of its Subsidiaries filed by independent certified public accountants in connection with each annual, interim or special audit of the prior five years to perfect an interest in any assets thereof, together with copies books of such financing statements, none the Company or of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined its Subsidiaries made by such accountants, including, without limitation, any final comment letter submitted by such accountants to management in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except connection with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.their annual audit;
(vi) On promptly upon their becoming available, copies of all financial statements, reports, notices and proxy statements sent or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, made available generally by the Company shall have to all of its security holders in their capacity as such or by any Subsidiary of the Company to its security holders, other than the Company, and of all regular and periodic reports and all final registration statements and final prospectuses, if any, filed an amended and restated Certificate by the Company or any of Incorporation its Subsidiaries with any securities exchange or with the Secretary SEC or any Governmental Authority succeeding to any of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.its functions;
(vii) On or as soon as available, but in any event within thirty (30) days after the end of each month and within ten (10) days prior to each regularly scheduled meeting of the fifth (5th) calendar day after Board of Directors of the Company, a narrative report prepared by the President of the Company detailing the activities, business developments, operating results and marketing efforts of the Company and its Subsidiaries since the date hereof, each of the Other Investors and previous such report delivered by the Company shall have pursuant to this subsection (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes vii); and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached heretosuch other information reasonably requested by such Purchaser.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Ifx Corp)
Post-Closing Covenants. Notwithstanding anything to the contrary, and subject to the terms of the New Security Agreement and the New Pledge Agreement, as applicable:
a. Within thirty (i) On or prior to five (530) calendar days after the Closing Datedate hereof (or such later date as determined by the Collateral Agent in its reasonable discretion), Fourth Third LLC the Collateral Agent shall have duly executed received an account control agreement, with respect to each account referred to in Schedule IV of the Security Agreement as of the date hereof, in form and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable substance satisfactory to the Collateral Agent, duly executed by the Company and/or Guarantors, as applicable, and such bank or financial institution (as applicable), or enter into other arrangements, as required under Section 5(i) of the Security Agreement, in form and substance satisfactory to the Collateral Agent, in each case, subject to the terms of the New Security Agreement.
(ii) On or prior to b. Within five (5) Business Days after the date hereof (or such later date as determined by the Collateral Agent in its reasonable discretion), the Collateral Agent shall have received all certificates and/or instruments evidencing the Pledged Interests (as defined in the New Security Agreement and the New Pledge Agreement, as applicable) as of the date hereof, accompanied by undated instruments of transfer executed in blank, as applicable.
c. Within thirty (30) calendar days after the Closing Date, date hereof (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) such later date as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing determined by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Dateits reasonable discretion), the Company Collateral Agent shall have filed an amended received applicable property and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase liability insurance certificates and endorsements (as defined belowincluding loss payable endorsements), in form and substance reasonably acceptable satisfactory to the Collateral Agent, naming the Collateral Agent as an additional insured and as mortgagee (as applicable) as its interests may appear with respect to all such property and liability insurance policies referred to in Section 5(e)(i) of the New Security Agreement and in each case, maintained by the Company and/or Guarantors, as applicable, as of the date hereof.
d. Within ten (10) Business Days hereof (or such later date as determined by the Collateral Agent in its reasonable discretion), the Collateral Agent shall have received the results of customary searches for UCC financing statements, tax liens and judgment liens filed on or prior to the date hereof, against the Company, Merton, Acacia Research Group LLC and any property of the foregoing, which results will not show any such liens (other than Permitted Liens).
e. Within five (5) Business Days after the date hereof (or such later date as determined by the Collateral Agent in its reasonable discretion), the Collateral Agent shall have received evidence of filed UCC-3 termination statements and a patent security agreement termination, in each case, in form and substance reasonably satisfactory to the Collateral Agent, relating to the discharge, termination and release of Liens granted pursuant to the Security Agreement and that certain Patent Security Agreement, dated as of June 4, 2020, respectively.
f. Within five (5) Business Days hereof (or such later date as determined by the Collateral Agent in its reasonable discretion), the Collateral Agent shall have received, with respect to RRI Investments LLC, customary joinder agreement to the New Pledge Agreement dated as of the date hereof, in form and substance reasonably satisfactory to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company g. Any breach of this Section 10 shall have filed be deemed an amended and restated Certificate “Event of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split Default” (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by New Notes) under the Company's transfer agentNew Notes.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. The Borrower shall satisfy each of the following to the reasonable satisfaction of the Administrative Agent (iacting at the direction of the Required Lenders), in each case, by no later than the date specified below for such conditions (or such later date as the Administrative Agent (acting at the direction of the Required Lenders) On or prior to five shall agree in its sole but reasonable discretion):
(5a) calendar days after Within one (1) Business Day following the Closing Date, Fourth Third LLC the Loan Parties shall have duly executed and delivered deliver to the Investor and Administrative Agent evidence of the Company submission of each of the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each filings referenced in a form reasonably acceptable to the Collateral Agentclause (b) below.
(b) Within ten (10) Business Days following the Closing Date, the Loan Parties shall deliver to the Administrative Agent evidence that (i) the liens with respect to the Israeli Loan Parties pursuant to the Existing SVB Credit Facility and registered with the Registrar of Companies or the Registrar of Patents (if applicable) were removed, (ii) On or prior certificates of registration of the Debentures issued by the Israeli Registrar of Companies, and (iii) evidence of registration of the fixed Debenture with the Registrar of Patents (if applicable).
(c) Within thirty (30) days following the Closing Date, the Loan Parties shall deliver to the Administrative Agent a customary executed legal opinion of Texas counsel to the Loan Parties in form and substance reasonably satisfactory to the Required Lenders.
(d) Within forty-five (545) calendar days following the Closing Date, the Loan Parties shall deliver to the Administrative Agent amendments, in form and substance reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders), to the operating agreement of each Group Member that is a limited liability company and whose Capital Stock is pledged as Collateral.
(e) Within forty-five (45) days following the Closing Date, (i) the Loan Parties shall deliver to the Administrative Agent the insurance endorsements (w) naming the Administrative Agent, on behalf of the Secured Parties, as additional insured with respect to each policy of liability insurance, (x) naming the Administrative Agent, on behalf of the Secured Parties, as loss payee with respect to each policy of property insurance, (y) providing that the insurer shall give the Administrative Agent, on behalf of the Secured Parties, at least thirty (30) days’ notice before canceling or declining to renew its policy and at least ten (10) days’ notice of any non-payment of premiums, and (z) reasonably acceptable in other respects to the Administrative Agent (acting at the direction of the Required Lenders), in each case, with respect to each such policy maintained in accordance with the provisions of Section 6.6 of this Agreement and (ii) with respect to any insurance policy maintained in Israel, the Administrative Agent shall be designated as a ‘Motav’ in the meaning and for the purposes of the Israeli Insurance Contract Law 5741-1981.
(f) Within sixty (60) days after the Closing Date, (Ai) the Share Exchange Loan Parties shall have been consummated deliver to the Administrative Agent the Control Agreements for each Deposit Account and Securities Account of a Loan Party held at a financial institution in accordance with the terms United States as of the Share Exchange Agreement without any amendment, modification or waiver thereof Closing Date (except other than Excluded Accounts; and it being understood that the Control Agreements with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) respect to the offices set forth opposite their names Guaranty Accounts established on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG or about the Closing Date shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and be delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after substantially concurrently with the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I each Israeli Loan Party shall use commercially reasonable efforts to be duly filed in such office provide Administrative Agent with acknowledgements from each Israeli bank at which it maintains a Deposit Account or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.Securities
Appears in 1 contract
Post-Closing Covenants. (ia) On or prior to five (5) calendar Within 10 days after the Closing DateDate (unless extended by the Administrative Agent in its sole discretion), Fourth Third LLC the Administrative Agent shall have duly executed received copies of insurance policies and delivered to declaration pages evidencing liability, casualty, property, terrorism and business interruption insurance meeting the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each requirements set forth herein or in a form reasonably acceptable to the Collateral Documents or as required by the Administrative Agent.
(iib) On or prior to five (5) calendar Within 60 days after the Closing DateDate (unless extended by the Administrative Agent in its sole discretion), (A) the Share Exchange Loan Parties shall have been consummated in accordance provide the Administrative Agent with executed pledge agreements, authorizing resolutions, legal opinions and such other agreements, documents and certificates as may be required under local law and requested by the terms Administrative Agent to effect and perfect the pledge by the Borrower of 65% of the Share Exchange Agreement without any amendment, modification or waiver thereof Equity Interests in CommVault Systems International BV and CommVault Systems (except with the prior written consent of the Collateral Agent), (BAustralia) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.Pty Ltd.
(iiic) On or prior to five (5) calendar Within 90 days after the Closing DateDate (unless extended by the Administrative Agent in its sole discretion and which requirement may be waived by the Administrative Agent, if the Administrative Agent determines in its sole discretion that the cost thereof is excessive in relation to the benefit to the Secured Parties that would result therefrom), the Loan Parties shall deliver to the Administrative Agent evidence that Equity Interests constituting Pledged Equity of each of CommVault Systems De Mexico SRl de CV and CommVault Systems (Singapore) Private Limited, have been duly pledged to the Administrative Agent for the benefit of the Secured Parties as required pursuant to the Security Agreement, including the delivery of certificates constituting such Pledged Equity, if any, in accordance with suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, substantially in the terms of form provided in Exhibit A to the Security Documents, the Company shall have delivered Agreement or other form acceptable to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Administrative Agent, desirable to perfect the security interests purported to be created by each Security Document.
(ivd) On or prior to five (5) calendar Within 3 days after the Closing DateDate (unless extended by the Administrative Agent in its sole discretion), the Company Administrative Agent shall have ordered from a nationally recognized lien search firm (such as CT)received an opinion of New Jersey counsel for the Loan Parties, for delivery addressed to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) Administrative Agent and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below)Lenders, in form and substance reasonably acceptable to the Collateral Administrative Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. Notwithstanding anything to the contrary, and subject to the terms of that certain Pledge and Security Agreement, dated as of the date hereof (as amended, the "Security Agreement"):
a. Within five (5) Business Days after the Additional Closing related to the June 2020 Approved Investment (or such later date as determined by the Collateral Agent in its reasonable discretion), the Collateral Agent shall have received the results of customary searches (including comparable searches in any jurisdiction outside the United States) for UCC financing statements, tax liens and judgment liens filed on or prior to the date hereof, against the Company or any of the Guarantors or any property of the foregoing, which results, to the knowledge of the Company or any Guarantor, will not show any such liens (other than Permitted Liens and Intellectual Property Rights that occur in the ordinary course of the Company's and Guarantors' business as a purchaser, seller and enforcer of Intellectual Property Rights).
b. Within three (3) Business Days after the receipt by the Company of all search results described in Section 11(a) above (or such later date as determined by the Collateral Agent in its reasonable discretion), the Company shall provide to the Collateral Agent evidence of the filing of (i) On or prior applicable UCC-3 termination statements with respect to five the liens disclosed on such search results and (5ii) all other payoff, termination and release documents mutually agreed to by the Company and the Collateral Agent .
c. Within thirty (30) calendar days after the Additional Closing Daterelated to the June 2020 Approved Investment (or such later date as determined by the Collateral Agent in its reasonable discretion), Fourth Third LLC the Collateral Agent shall have duly executed received an account control agreement, with respect to each account referred to in Schedule IV of the Security Agreement as of the date hereof, in form and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable substance satisfactory to the Collateral Agent.
, duly executed by the Company and/or Guarantor, as applicable, and such bank or financial institution (iias applicable), or enter into other arrangements, as required under Section 5(i) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendmentSecurity Agreement, modification or waiver thereof (except with the prior written consent of in form and substance satisfactory to the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with each case, subject to the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security DocumentAgreement.
(iv) On or prior to d. Within five (5) calendar days Business Days after the Additional Closing Daterelated to the June 2020 Approved Investment (or such later date as determined by the Collateral Agent in its reasonable discretion), the Company Collateral Agent shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to received all certificates and/or instruments evidencing the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral Pledged Interests (as defined in the Security DocumentsAgreement) and as of the results date hereof, accompanied by undated instruments of searches for any tax lien and judgment lien filed against transfer executed in blank, as applicable.
e. Within thirty (30) calendar days after the Additional Closing related to the June 2020 Approved Investment (or such Person or its property, which results, except later date as otherwise agreed to in writing determined by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Dateits reasonable discretion), the Company Collateral Agent shall have filed an amended received applicable property and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase liability insurance certificates and endorsements (as defined belowincluding loss payable endorsements), in form and substance reasonably acceptable satisfactory to the Collateral Agent, naming the Collateral Agent as an additional insured and as mortgagee (as applicable) as its interests may appear with respect to all such property and liability insurance policies referred to in Section 5(e)(i) of the Security Agreement and in each case, maintained by the Company and/or any Guarantor as of the date hereof.
f. Within ten (10) Business Days after the Additional Closing related to the June 2020 Approved Investment (or such later date as determined by the Collateral Agent in its reasonable discretion), the Collateral Agent shall have received, with respect to each Subsidiary organized in Germany, customary joinder agreements to the Security Documents dated as of the date hereof, executed in connection with the Additional Closing related to the June 2020 Approved Investment, in each case, in form and substance reasonably satisfactory to the Collateral Agent.
g. Within five (vi5) On or prior Business Days after the Additional Closing related to the seventy-seventh June 2020 Approved Investment (77th) calendar day after or such later date as determined by the Stockholder Approval DateCollateral Agent in its reasonable discretion), the Company Collateral Agent shall have filed an amended and restated Certificate received, with respect to Acacia Intellectual Property Fund, L.P., customary joinder agreements to the Security Documents dated as of Incorporation the date hereof, executed in connection with the Secretary of State of Delaware effecting Additional Closing related to the Reverse Stock Split (as defined below)June 2020 Approved Investment, in each case, in form and substance reasonably acceptable satisfactory to the Collateral Agent.
(vii) h. On or prior to the fifth (5th) calendar day after the date hereofJune 11, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof2020, the Company shall have delivered pay the upfront fee described in Section 4(g) of the Securities Purchase Agreement and the costs and expenses pursuant to Section 10 of this Agreement to the Investor a copy Starboard Funds (and/or their designee) by wire transfer of immediately available funds pursuant to wire instructions delivered by the Irrevocable Transfer Agent Instructions, Designee to the Company in writing.
i. Any breach of this Section 11 with be deemed an "Event of Default" (as defined in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by Notes) under the Company's transfer agentNotes.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. (ia) On or prior to five The Warrantors shall procure that within nine (59) calendar days months after the Closing Date:
(i) the HK Holdco shall be duly established and incorporated under the Laws of Hong Kong and a copy of the register of members and the copies of all resolutions and documentations will be delivered to the Investor, Fourth Third LLC shall have certified by a duly executed authorized director of the HK Holdco to be true, complete and delivered correct copies thereof, reflecting that the Cayman Holdco owns 100% of the total issued share capital of the HK Holdco;
(ii) the HK Holdco Equity Transfer Agreement in the form satisfactory to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and by the parties thereof shall be delivered to the Investor that certain Voting Investor, all the necessary approvals and registrations with the relevant Government Authorities required for the HK Holdco Equity Transfer shall be obtained, and the equity transfer contemplated under the HK Holdco Equity Transfer shall be completed and a new business license of the WFOE shall be obtained;
(iii) HK Holdco shall become a party to this Agreement and Irrevocable Proxies other applicable Transaction Documents by executing the HK Holdco Deed of Adherence (in the form attached hereto as Exhibit G 3(b)) and agreed to comply with and be bound by all the provisions of this Agreement and all other applicable Transaction Documents in all respects as if the HK Holdco were a party to this Agreement and the other applicable Transaction Documents and were named herein and therein as a Party, Warrantor, Guarantor, Security Provider and Group Company, as applicable, and on the basis that reference herein and therein to each Party, Warrantor, Guarantor, Security Provider or Group Company, as applicable, includes a separate reference to the HK Holdco;
(Div) the Investor PNG Note HK Holdco shall have been delivered granted a pledge (the “HK Holdco Onshore Share Pledge”), in form and substance satisfactory to the Investor, duly executed on behalf in favor of PNG the Investor in respect of the 100% of the registered capital of the WFOE, and such equity pledge shall be approved by the relevant municipal commission of commerce and registered in with the name relevant administration for industry and commerce; and
(v) a copy of the Investor.
(iii) On or prior register of director of HK Holdco and copies of all resolutions and documentations shall be delivered to five (5) calendar days after the Closing Date, in accordance with Investor evidencing its board composition pursuant to the terms of the Security DocumentsShareholder and Noteholder Agreement, certified by a duly authorized director of the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I HK Holdco to be duly filed in such office or offices as may be necessary ortrue, in the opinion complete and correct copies thereof, and reflecting that its board includes 2 nominees of the Collateral Agent, desirable Investor as duly elected members to perfect the security interests purported to be created by each Security Document.such board;
(ivb) On or prior to five The Warrantors shall procure that within four (54) calendar days months after the Closing Date the equity pledge contemplated under the New Control Agreements shall be registered with the relevant administration for industry and commerce;
(c) The Warrantors shall procure that within two (2) month after the Closing Date, the Company Onshore Share Pledge shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing be approved by the Investor, shall cover any relevant municipal commission of the Collateral (as defined in the Security Documents) commerce and the results of searches equity pledge contemplated under the Onshore Share Pledge shall be registered with the relevant administration for any tax lien industry and judgment lien filed against commerce, such Person or its property, which results, except as otherwise agreed to in writing approval and registration requirement may be waived by the Collateral Agent and except with respect to any Permitted Liens (as defined Investor in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.writing;
(vd) On or prior to the second The Warrantors shall procure that within two (2nd2) calendar day months after the Stockholder Approval Closing Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors WFOE and Aizhudou shall have obtained all necessary approvals and registrations with the relevant Government Authority required for the change of its respective Charter Documents and the change of its board and appointment of Investor’s nominees as its director as contemplated under Section 4.1(h);
(e) The Warrantors shall procure that the existing shareholders of the Operating Company shall have complete the relevant registration required under PRC foreign exchange laws and regulations in connection with their respective investment in the Cayman Holdco and any other offshore Group Company within 90 Business Days after the Closing Date;
(f) The Warrantors shall procure that, to the extent permitted by PRC law and for the purposes of maximizing the economic interests of the Group, all the matters set out in Part A of Schedule 6 shall be completed within one (1) year after the Closing Date;
(g) The Warrantors shall procure that the restructuring steps set out in Schedule 7 shall be completed within 18 months after the Closing Date for the purposes of optimizing the tax structure of the Group and maximizing cash repatriation capacity from Onshore Group to Cayman Holdco;
(h) The Warrantors shall procure that the current sponsor of the Beijing Haidian District Xinda Training School (北京市海淀区新大培训学校) which is Xx. Xxxxx Yunying shall be replaced by the Operating Company within 2 months after the Closing Date; and
(i) executed To the Other Agreements, (iiextent the condition precedent under Section 4.1(n) is waived by the Releases, (iii) satisfied or waived all conditions to Investor and any of the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicableEquity Transfer Agreements have not been duly entered into, the Series B Notes, identical to Warrantors shall procure that all the Amended and Restated Primary Notes and, if applicable, the Series B Notes to Equity Transfer Agreements which have not been signed before Closing shall be issued to the Investor hereunder (other than the Proportionate Changes)duly entered into within 30 days after Closing.
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Note Purchase Agreement (Ascendent Capital Partners II, L.P.)
Post-Closing Covenants. (ia) On or prior With respect to five the [***] Fund, Borrower shall, within sixty (560) calendar days after following the Closing Date, Fourth Third LLC shall have duly executed and delivered deliver to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in Administrative Agent a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly fully executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, a Partnership Flip Back-Up Servicing Agreement for such Partnership Flip Fund substantially in the form of Exhibit L attached heretoE or a Partnership Flip Transition Management Agreement in the form of Exhibit F.
(b) With respect to the [***] fund, which instructions the Borrower shall, within sixty (60) days following the Closing Date, deliver to the Administrative Agent a fully executed copy of an amendment to the applicable Limited Liability Company Agreement (i) amending the reference to Section 5.02(c) in Section 12.02(a)(v) of such Limited Liability Company Agreement to be a reference to Section 5.02(b) and (ii) clarifying that a foreclosure by creditors (or a disposition in lieu of foreclosure) in respect of the membership interests of the applicable Tax Equity Holdco or any direct or indirect parent of the applicable Tax Equity Holdco shall have been delivered to not constitute a “Change of Member Control” and acknowledged in writing by is otherwise permitted without the Company's transfer agentconsent of the Tax Equity Class A Members under such Tax Equity Limited Liability Company Agreement.
(xc) On With respect to the [***] fund, the Borrower shall, within sixty (60) days following the Closing Date, deliver to the Administrative Agent a fully executed copy of an amendment to the applicable Limited Liability Company Agreement amending the reference to Section 5.01(b) in Section 12.02(a)(vi) of such Limited Liability Company Agreement to be a reference to Section 5.02(b). [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(d) Within ninety (90) days following the last day of the Availability Period, deliver to the Administrative Agent each Customer Agreement relating to Eligible Projects in the Project Pool that was not previously delivered to the Administrative Agent pursuant to Section 9.01(a)(xi) or 9.02(b)(iii).
(e) With respect to each of the [***] Fund, [***] Fund and [***] Fund, Borrower shall use commercially reasonable efforts to, within six (6) months following the Closing Date, deliver to the Administrative Agent a fully executed copy of an amendment to the Tax Equity Limited Liability Company Agreement of such Partnership Flip Opco, that either (A) provides that (i) the members of such Partnership Flip Opco acknowledge that Subchapters C and D of Chapter 63 of the Code have been repealed, and that Chapter 63 of the Code has been amended, by Section 1101 of the Budget Act, to be effective with respect to taxable years beginning after December 31, 2017; (ii) the members of such Partnership Flip Opco agree to cooperate, reasonably and in good faith, to take such action on or prior to the fifth (5th) calendar day effective date of Section 1101 of the Budget Act as reasonably necessary to preserve and retain after the effective date hereofof Section 1101 of the Budget Act (and any Further Guidance), to the extent possible, the substantive arrangement and relative and analogous rights, duties, indemnities, responsibilities, risks, and obligations of the applicable Tax Equity Holdco and Tax Equity Class A Members reflected in such Tax Equity Limited Liability Company shall Agreement with respect to tax audits and other administrative procedures addressed by Section 1101 of the Budget Act; and (iii) no member of such Partnership Flip Opco may make or cause such Partnership Flip Opco to make any election under Section 1101(g)(4) of the Budget Act or any subsequent law or guidance to have delivered the provisions of Section 1101 of the Budget Act apply to such Partnership Flip Opco prior to the Investor a letter from the Company’s transfer agent certifying the number effective date of shares of Common Stock outstanding as of a date within five days Section 1101 of the Closing DateBudget Act or (B) (i) incorporates any changes necessary to preserve and retain after the effective date of Section 1101 of the Budget Act (and any Further Guidance), to the extent possible, the substantive arrangement and relative and analogous rights, duties, indemnities, responsibilities, risks, and obligations of the applicable Tax Equity Holdco and Tax Equity Class A Members reflected in such Tax Equity Limited Liability Company Agreement with respect to tax audits and other administrative procedures addressed by Section 1101 of the Budget Act; and (ii) provides that no member of such Partnership Flip Opco may make or cause such Partnership Flip Opco to make any election under Section 1101(g)(4) of the Budget Act or any subsequent law or guidance to have the provisions of Section 1101 of the Budget Act apply to such Partnership Flip Opco prior to the effective date of Section 1101 of the Budget Act.
Appears in 1 contract
Samples: Credit Agreement (Sunrun Inc.)
Post-Closing Covenants. (i) On or prior to 13.1 After Closing and as far as possible with reasonable effort, the Purchaser shall provide the Founders and the Investors with all necessary documentation and will allow participation in all meetings with third parties which may result in warranty claims by the Purchaser against the Founders and the Investors.
13.2 No later than five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after Business Days following the Closing Date, the Company Purchaser shall have ordered from a nationally recognized lien search firm (such provide the Sellers’ Representative with an executed set of option grant agreements along with the respective option grant letters for the Beneficiaries as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) between Inpixon and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or Founders prior to the second Signing Date which shall indicate the exact number of Stock Options allocated to the respective Target Company employee.
13.3 In addition, the Sellers’ Representative shall ensure that the Target Company will without undue delay and based on the power of attorney granted by the Purchaser in accordance with clause 8.2.5 ensure that Xx. Xxxxx Xxx and Xxx. Xxxxx Xxxxxxxxxx will be granted full access to the Target Company’s bank accounts. For the avoidance of doubt: The authorized signatories listed in Schedule 9.11 shall maintain their authorizations, unless revoked by the Purchaser in its sole discretion.
13.4 For a period as long as the respective Managing Director is employed by the Purchaser, but in any case for at least two (2nd2) calendar day years after the Stockholder Approval DateClosing Date the following shall apply:
13.4.1 The Managing Directors shall not, directly or indirectly, and in any manner whatsoever, anywhere in the Territory engage, invest in, own, manage, operate, finance, control, advise, guarantee the obligations of, be employed by, or otherwise be connected to or associated with, the Business as conducted by the Target Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting business as conducted by the Capital Increase (as defined below)Purchaser and its Affiliates, in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated case as of the Closing Date, (“Competing Activity”); provided, however, that the Managing Directors may acquire or otherwise own less than 5% of the outstanding shares in substantially the form capital of Exhibit H attached heretoa Person.
13.4.2 The Managing Directors shall not, directly or indirectly, (ixa) On cause, induce, or attempt to cause or induce, any Employee of the Target Company to terminate its relationship with the Target Company; (b) in any way interfere with the relationship between the Target Company and any of its Employees.
13.4.3 The Managing Directors shall not, directly or indirectly, (a) solicit, induce, or otherwise cause, or attempt to solicit, induce, or otherwise cause, any customer, licensor, licensee, or any prospective customer, licensor, or licensee that has been contacted or targeted for contact by the Target Company on or before the date of this Agreement, or any other Person engaged in a business relationship with the Target Company, to (i) terminate, curtail, or otherwise modify its relationship with the Target Company, or (ii) engage in business with a competitor of the Target Company, or (b) interfere in any way with the relationship between the Target Company, and any of its customers, licensors, licensees, or any such prospective customers, licensors, or licensees, or any other Person engaged in a business relationship with the Target Company.
13.5 The Founders shall not make any disparaging statement, either orally or in writing, regarding the Purchaser, or the Target Company, its respective products or services, or any of their respective shareholders, directors, officers, employees or consultants.
13.6 The Founders shall not make any claims or otherwise seek to enforce any rights it may have, or may have had in the past, against the Target Company or any of its past or current customers in relation to Intellectual Property Rights in any works, creations, performances or inventions by Founders which fall within the business scope of the Target Company.
13.7 In the event that, at any time prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days second anniversary of the Closing Date, the Managing Directors enter into an employment, consulting engagement, independent contractor engagement, partnership or other business association with any Person other than the Purchaser or the Target Company, which may be considered as competitive with the Target Company as per clause 13.4 above, the Founders shall advise the Purchaser, within ten (10) Business Days of entering into such engagement or association, of the identity and address of such Person and the nature of the Founders’ engagement or association. The Purchaser may notify each such Person that the Founders are bound by this clause 13 and may furnish each such Person with a copy of applicable provisions of this Agreement.
13.8 The Founders agree that this clause 13 and the non-compete and non-solicitation covenants set forth herein, including the provisions relating to the duration, geographical area and scope thereof, are reasonable and necessary to protect and preserve the legitimate business interests of the Purchaser and that they are granted to maintain and preserve the value of the Target Company and the Target Shares.
Appears in 1 contract
Post-Closing Covenants. (i) On or prior to five (5) calendar days after Unless the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance dates set forth below are extended with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent:
(i) Within 60 days following the Closing Date, the Company shall duly execute and deliver a mortgage (the “Mortgage”) securing an amount up to One Million and 00/100 Dollars ($1,000,000.00) covering each of the real property described in Schedule 4(y)(ii) hereto (the “Properties”), (B) PNG in form and substance reasonably satisfactory to the Collateral Agent and shall have appointed paid any mortgage, transfer and/or other recording taxes related thereto.
(ii) Within 60 days following the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached heretoClosing Date, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered evidence to each Buyer that the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note Mortgage shall have been delivered to the Investorfiled of record, duly executed on behalf of PNG and registered in the name applicable real property records of such applicable jurisdictions set forth in the InvestorMortgage and covering the Properties.
(iii) On Concurrently with the delivery of the Mortgage, the Company shall cause to be delivered to the Collateral Agent an opinion of the Company’s outside counsel in form and substance reasonably satisfactory to the Collateral Agent regarding, inter alia, (a) Borrower’s and its mortgagor Subsidiaries’ (i) due formation and good standing and (ii) due power and authority to execute, deliver and perform this Agreement, the Transaction Documents, the Mortgage, and the transactions contemplated thereby, as applicable, and (b) the due execution and delivery by the Company and its Subsidiaries of this Agreement and/or the other Transaction Documents to which they are parties;
(iv) Concurrently with the delivery of the Mortgage, the Company shall cause to be delivered to the Collateral Agent consents and authorizing resolutions duly executed by Company’s board of directors, as required by the terms of Company’s Articles of Incorporation and By-Laws as in effect on the date thereof, and by the mortgagor Subsidiaries’ managers or prior to five (5) calendar days after the Closing Datemanaging members, in accordance with boards of directors or other equivalent bodies, as required by the terms of the Security Documentsorganizational documents of the mortgagor Subsidiaries as in effect on the date thereof, together with the related incumbency certificates, consenting to and authorizing the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated hereby and thereby;
(v) Within 60 days following the Closing Date, the Company shall have delivered to the Collateral Agent an ALTA mortgagee title insurance policy (ithe “Mortgage Policy”) certificates representing (or, if such Property is in a state which does not permit the Company’s Subsidiaries’ shares issuance of capital stock such ALTA policy, such form as shall be permitted in such state and reasonably acceptable to the extent such subsidiary is a corporation Collateral Agent), issued by Chicago Title Insurance Corporation or otherwise has certificated capital stock, along another title insurance company satisfactory to the Collateral Agent (the “Title Insurance Company”) with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I respect to be duly filed in such office or offices as may be necessary oreach of the Properties, in an amount satisfactory to the opinion Collateral Agent with respect to each such Property, which amount shall not exceed the fair market value for such Property, or in the aggregate for all Properties, the aggregate principal amount of the Notes, assuring the Collateral Agent that the Mortgage creates a valid and enforceable first mortgage lien subject only to Permitted Liens (as defined in the Notes) on such Property, free and clear of all defects and encumbrances other than Permitted Liens and those which are usual and customary or permitted by the Collateral Agent in its reasonable discretion, which Mortgage Policy shall be in form and substance reasonably satisfactory to the Collateral Agent and containing such endorsements as shall be reasonably satisfactory to the Collateral Agent, desirable including a last dollar endorsement, and for any other matters that the Collateral Agent may reasonably request, and providing affirmative insurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to perfect the security interests purported Collateral Agent. In the event the Collateral Agent reasonably requests the deletion of any standard or printed exceptions, the Company shall provide customary affidavits, and other similar instruments, including updated surveys, as are reasonably required by the Title Insurance Company for the deletion of any standard or printed exceptions, in any title insurance policies issued pursuant thereto. Without limiting the foregoing, the Company agrees to execute and deliver to the Title Insurance Company such agreements, assurances and indemnities as may be created required by each Security Documentthe Title Insurance Company to issue the Mortgage Policy without any exception for unrecorded leases and matters arising from or affecting the same and with specific coverage against priority of mechanic’s liens.
(ivvi) On or prior to five (5) calendar Within 30 days after following the Closing Date, the Company shall have ordered delivered to the Collateral Agent a zoning report on each of the Properties, from the Planning and Zoning Resource Corporation, in a nationally recognized lien search firm form reasonably satisfactory to the Collateral Agent and confirming that the State land use classifications, development/general plan designations, and zoning classification for each of the Properties is as shown on Schedule I.
(such as CTvii) Within 15 Business Days following the Closing Date, the Company shall have provided to the Collateral Agent from its files certified copies to the extent applicable of any leases and brokerage agreements affecting each of the Properties that are in the Company’s possession.
(viii) To the extent there are any leases on the Properties (the “Current Leases”), for delivery the Company shall have provided to the InvestorCollateral Agent within 45 days following the Closing Date a true, correct and complete (a) rent roll for the Current Leases which includes, without limitation, the expiration date of the Current Leases (after giving effect to any extension options contained in such Current Leases) and (b) copies of all material notices, written correspondence or other written communication between any tenants under the Current Leases or any affiliates, agents, counsel or representatives of such tenants and Company or any affiliates, agents, counsel or representatives of Company. Company acknowledges that it does not have any outstanding payment obligations to any tenants under any Leases except as set forth on the rent roll and Borrower is not holding any security deposits for any tenants under any of the Current Leases except as set forth on the rent roll.
(ix) Within 45 days following the Closing Date, the Company shall have obtained and delivered to the Collateral Agent a current survey for each of the Properties, all certified to the Title Insurance Company and the Collateral Agent and their successors and assigns, in form and content reasonably satisfactory to the Collateral Agent and prepared by a professional and properly licensed land surveyor reasonably satisfactory to the Collateral Agent in accordance with the Accuracy Standards for ALTA/ACSM Land Title Surveys as adopted by ALTA, American Congress on Surveying & Mapping and National Society of Professional Surveyors in 2005. Such surveys shall reflect the same legal description contained in the Mortgage Policy and shall include, among other things, a metes and bounds description of the real property comprising part of each of the Properties reasonably satisfactory to the Collateral Agent. The surveyor’s seal shall be affixed to such survey and the surveyor shall provide a certification for such survey in form and substance reasonably acceptable to the Collateral Agent.
(x) Within 60 days following the Closing Date, the Company shall have obtained and delivered to the Collateral Agent evidence that the Collateral Agent has been named (A) as an additional insured, as its interests may appear, under all general liability insurance policies applicable to the Properties and (B) as a loss payee, as its interest may appear, under all casualty insurance policies applicable to the Properties. Company shall be required to maintain all-risk insurance, business interruption and liability insurance including flooding and windstorm insurance if property is located in a flood or hurricane zone, as applicable.
(xi) Within ten Business Days following the Closing Date the Company shall have delivered or caused to be delivered to each Buyer (i) true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the InvestorBuyers, shall cover any of the Real Property Collateral (as defined in the Security DocumentsNotes) other than Permitted Liens (as defined in the Notes) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) Buyers shall either (x) not show any such Liens (as defined in the Amended Security Documents) other than Permitted Liens; and Restated Primary Notes(ii) a perfection certificate, a form of which may be delivered by the Collateral Agent at or (y) be accompanied with evidence that such Liens have been terminatedprior to Closing, duly completed and executed by the Company and each of its Subsidiaries, in form and substance satisfactory to the Buyers.
(vxii) On or prior to Within ten days of the second (2nd) calendar day after the Stockholder Approval Closing Date, the Company shall have filed an amended delivered copies of any archeological studies, environmental and/or engineering reports or the like that the Company has obtained with respect to the Properties or any portion thereof or reasonably requested by Collateral Agent, and restated Certificate within thirty (30) Business Days of Incorporation the Closing Date obtain and provide updated Phase I environmental reports for the Properties.
(xiii) Notwithstanding anything herein to the contrary, all premiums, fees, costs and expenses in connection with the Secretary Company’s compliance with this Section 4(y), including legal fees of State the Collateral Agent and/or fees charged by the Title Insurance Company for any such title reports, title insurance policies, surveys and reports shall be borne wholly by the Company.
(xiv) Notwithstanding the above, Collateral Agent has the right but not the obligation to record such Mortgage.
(xv) Within thirty (30) days of Delaware effecting receipt of a copy of tax and lien searches on the Capital Increase Properties, Company shall cause any violations and open permits affecting the Properties to be closed, and any liens, unpaid fines or running fines to be fully paid to the applicable governmental authority.
(xvi) As soon as practicable following the Closing Date, in no event exceeding the period ending on the thirtieth (30th) day after the Closing Date, the Company shall (x) have established the Lockbox Account at the Lockbox Bank (as defined below)in the Notes) and (y) deliver to the Collateral Agent an account control agreement, in form and substance reasonably acceptable satisfactory to the Collateral Agent, duly executed by the Company and the Lockbox Bank with respect to the Lockbox Account.
(vixvii) On or prior to As soon as practicable following the seventy-seventh Closing Date, in no event exceeding the period ending on the thirtieth (77th30th) calendar day after the Stockholder Approval Closing Date, the Company shall have filed an amended and restated Certificate of Incorporation with deliver to the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below)Collateral Agent account control agreements, in form and substance reasonably acceptable satisfactory to the Collateral Agent.
(vii) On or prior , duly executed by the Company, with respect to the fifth (5thbank accounts and related banks described on Schedule 4(y)(xvii) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Digital Domain Media Group, Inc.)
Post-Closing Covenants. No later than November 15, 2012, the Borrower shall deliver, or cause to be delivered, to the Bank:
(a) A joinder agreement (the “Joinder”) in form and substance satisfactory to the Bank, whereby Procurian International II LLC, Procurian IP Holdings, LLC, Media IQ, LLC and Utilities Analyses, Incorporated (each a “Joining Subsidiary”) shall join the Loan Agreement and other Loan Documents as a Borrower, Obligor, Grantor and Pledgor and grant the Bank a security interest in all their assets.
(b) A certificate from a responsible officer of each Joining Subsidiary certifying (i) On or prior to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed that attached thereto is a true and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms complete copy of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below)resolutions, in form and substance reasonably acceptable satisfactory to the Collateral Agent.
Bank, of such Joining Subsidiary authorizing the execution and delivery of the Joinder and the performance of the Joinder and the Loan Documents to which it is becoming a party pursuant to such Joinder, and that such resolutions have not been amended, modified, revoked or rescinded in any manner and are in full force and effect, (viii) On that attached thereto is a true and complete copy of such Joining Subsidiary’s organizational documents, and that such organizational documents have not been amended, modified, revoked or prior to the seventy-seventh rescinded and are in full force and effect, (77thiii) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate good standing certificates dated as of Incorporation with a recent date from the Secretary of State or appropriate taxing or other authorities in the jurisdiction of Delaware effecting formation of such Joining Subsidiary and (iv) as to the Reverse Stock Split incumbency and specimen signatures of each officer executing the Joinder on behalf of such Joining Subsidiary;
(c) An executed legal opinion of counsel to the Joining Subsidiaries, addressed to the Bank and covering such matters incident to the transactions contemplated by the Joinder as defined below), the Bank may reasonably require;
(d) The Bank shall have received UCC lien searches in form and substance reasonably acceptable satisfactory to it for the Collateral Agent.Joining Subsidiaries; and
(viie) On or prior to Stock certificates for the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrantscertificated interests, if any, Existing Second Bridge Warrantsin Procurian Switzerland GmbH, if anyProcurian Spain, Existing Primary NotesS.L., Existing Primary Series A Warrants Media IQ, LLC and Existing Primary Series B Warrants Utilities Analyses, Incorporated pledged under the Pledge Agreement (as amended by this Amendment), duly indorsed in blank. If the Borrower fails to be cancelled in exchange for Amended and Restated Primary Notes anddeliver any of the above items by November 15, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day 2012 after the date hereofhereof (or such later date as the Bank shall agree to in writing), the Investor such failure shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of such date constitute an Event of Default, unless the Closing Date, Bank in substantially its sole discretion shall extend the form of Exhibit H attached heretodates for the foregoing deliveries or waive such requirement.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Loan Agreement (Icg Group, Inc.)
Post-Closing Covenants. From and after the Closing, and until R-II-A has received all distributions due it from the Subsidiaries, and Buyer has received all distributions due Buyer from R-II-A:
(a) SSC and JGW shall, and SSC shall cause R-II to, deliver to Buyer (i) On all notices (and, in the case of JGW, servicer reports) delivered by SSC, R-II or prior JGW, as the case may be, under or pursuant to any Securitization Document simultaneously with the delivery of such notice, and (ii) all notices and reports received by SSC, R-II or JGW, as the case may be, under or pursuant to any Securitization Document promptly, but in any event within five (5) calendar days business days, after receipt of such notice. Without limiting the foregoing, SSC shall, promptly after the Closing, instruct (to the extent permitted to do so) the other parties to the Securitization Documents (other than the Class A Certificateholders, the Series 1997-A Noteholders, the Series 1998-1 Noteholders and the Series 1998-A Noteholders) to deliver copies of all notices and reports to Buyer.
(b) Buyer, DVL, their respective assigns (or designated representative thereof) and independent accountants appointed by, or other agents of, any of the foregoing, shall have the right, upon reasonable prior written notice to SSC, to visit SSC, to discuss the affairs, finances and accounts of R-II-A and the Subsidiaries with, and to be advised as to the same by, SSC's officers, to examine the books of account and records of R-II-A and the Subsidiaries, and to make or be provided with a copy and extract therefrom, all at such reasonable times and intervals (but not more than once in any one-month period) and to such reasonable extent during regular business hours as Buyer, DVL, their respective assigns (or designated representative thereof) or such accountants or agents appointed by any of the foregoing, as applicable, may desire. JGW shall cooperate reasonably in providing any information requested by Buyer, DVL, their respective assigns (or designated representative thereof) or such accountants or agents appointed by any of the foregoing pursuant to this Section 8(b). Each of SSC, R-II, R-II-A and JGW recognizes that Buyer is a wholly-owned subsidiary of a company that is required to report under the Securities Exchange Act of 1934, as amended.
(c) None of R-II-A and the Subsidiaries will engage in any business other than the business of acquiring, holding, managing and transferring structured settlement receivables as in effect on the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(d) After the obligations of JGW as Master Servicer have terminated under any of (I) the Pooling and Servicing Agreement and the 1997-1 Supplement (the "1997-1 Agreements"), (II) the 9/30/97 Indenture and the 1997-A Supplement (the "1997-A Agreements"), (III) the 9/30/97 Indenture and 1998-1 Supplement (the "1998-1 Agreements") and (IV) the 12/23/98 Indenture and the 1998-A Supplement (the "1998-A Agreements"), as the case may be, other than as a result of a Service Transfer following a Servicer Default, (i) JGW (or its successor permitted by the Securitization Documents) shall continue to serve as administrator and/or servicer with respect to the relevant Receivables upon the terms and conditions set forth in the 1997-1 Agreements, the 1997-A Agreements, the 1998-1 Agreements or the 1998-A Agreements, as the case may be, for the benefit of R-I, R-III or R-IV, as the case may be, until Buyer shall have received all distributions due Buyer from R-II-A, and (ii) On in the event of a breach or default by any of SSC, JGW or R-II of its obligations under any Securitization Document, Buyer shall have the right, upon prior written notice to five such party, to enforce the Subsidiaries' rights under the Securitization Document (5and the certificates and documents, but not the legal opinions, executed in connection therewith) calendar as if Buyer were a party thereto; PROVIDED, HOWEVER, that (1) Buyer shall take no such action if, within thirty (30) days after Buyer has delivered such written notice, SSC, JGW or R-II, as the Closing Datecase may be, shall have cured such breach or default, and (2) such enforcement rights shall be subject to the terms and conditions of the Securitization Documents; PROVIDED FURTHER THAT, after payment in full of all notes, certificates and other obligations in favor of the Class A Certificateholders, the Series 1997-A Noteholders, the Series 1998-1 Noteholders and the Series 1998-A Noteholders, (A) the Share Exchange shall have been consummated in accordance with the terms rights of the Share Exchange Agreement without Trustee, any amendmentRating Agency, modification any Controlling Party or waiver thereof (except with the prior written consent any other third party VIS-A-VIS JGW under such agreements shall be deemed to be rights of the Collateral Agent)Issuer, and (B) PNG if JGW or an affiliate of JGW is the Applicable Master Servicer, Buyer shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) sole right to give any Termination Notices to the offices set forth opposite their names Master Servicer and to appoint a Successor Servicer on Table I of Schedule 1(h)(iii) attached heretosuch terms and conditions as are agreed to by Buyer; provided, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) however, as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto long as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name one or both of the InvestorNotes are outstanding, Buyer and SSC shall mutually agree upon the choice of a Successor Servicer, each such party covenanting to act reasonably and in good faith in mutually agreeing to such appointment.
(iiie) On or prior to five (5) calendar days after Buyer directs JGW, as servicer under the Closing Date, in accordance with the terms of the Security Securitization Documents, and JGW accepts such direction, to make all payments due under the Company shall have delivered Notes directly to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security DocumentSSC.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (DVL Inc /De/)
Post-Closing Covenants. (a) Within 10 Business Days of the date hereof (or such later date as permitted by Agent in its reasonable discretion), Borrowers shall deliver to Agent certificates of status with respect to Ultriva, LLC issued by the appropriate officer of each of (i) On or prior the State of Illinois, (ii) the State of Virginia, and (iii) the State of North Carolina, and indicating that Ultriva, LLC is in good standing in such jurisdiction and registered to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and do business in each such jurisdiction under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agentits legal name.
(b) Within 30 days of the date hereof (or such later date as permitted by Agent in its reasonable discretion), Borrowers shall deliver to Agent evidence of the filing of trademark security interest releases with respect to each of (i) that certain Intellectual Property Security Agreement, dated as of October 2, 2007, by and between RightAnswers, Inc. and Silicon Valley Bank, (ii) On or prior that certain Security Agreement dated as of December 10, 1999, by and between Serviceware, Inc. (predecessor in interest to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated certain Trademarks being acquired in accordance connection with the terms of the Share Exchange Agreement without any amendmentRightAnswers Merger Agreement) and PNC Bank, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG National Association and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior that certain Security Agreement dated as of November 21, 1997, by and between Serviceware, Inc. (predecessor in interest to five (5certain Trademarks being acquired in connection with the RightAnswers Merger Agreement) calendar days after the Closing Dateand PNC Bank, National Association, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below)case, in form and substance reasonably acceptable satisfactory to the Collateral Agent.
(vic) On Within 30 days of the date hereof (or prior such later date as permitted by Agent in its sole discretion), Borrowers shall comply with Sections 5.11 and 5.12 of the Credit Agreement with respect to the seventy-seventh (77th) calendar day after formation of RA Acquisition Corporation I, a Delaware corporation, and the Stockholder Approval Dateacquisition of RightAnswers, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Inc., a Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agentcorporation.
(viid) On Within 30 days of the date hereof (or prior such later date as permitted by Agent in its sole discretion), Borrowers shall deliver to Agent a fully executed Control Agreement from CIT Bank, N.A. with respect to each Deposit Account maintained by any Loan Party at CIT Bank, N.A., except to the fifth extent otherwise excused by Section 7(k)(iv) of the US Guaranty and Security Agreement or the Canadian Guarantee and Security Agreement.
(5the) calendar day after Within 90 days of the date hereofhereof (or such later date as permitted by Agent in its sole discretion), each of the Other Investors and the Company Borrowers shall have either (i) deliver to Agent a fully executed Control Agreement from Bank of America with respect to each Deposit Account maintained by any Loan Party at Bank of America (except to the Other Agreements, extent otherwise excused by Section 7(k)(iv) of the US Guaranty and Security Agreement or the Canadian Guarantee and Security Agreement) or (ii) the Releasesclose each Deposit Account maintained by any Loan Party at Bank of America; provided that, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after from the date hereof, hereof until the Investor shall have received the opinions earlier of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth delivery of such Control Agreement and (5thy) calendar day after the date hereofclosure of such Deposit Accounts, the Company Loan Parties shall have delivered not permit the aggregate amount on deposit in such Deposit Accounts to the Investor a letter from the Company’s transfer agent certifying the number exceed $250,000 at any one time. Failure to comply with any covenant in this Section 7 shall constitute an immediate Event of shares of Common Stock outstanding as of a date within five days of the Closing DateDefault.
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Post-Closing Covenants. Borrower shall, on or before the date applicable thereto, satisfy or cause to be satisfied each of the following post closing covenants (ithe failure by Borrower to so perform or cause to be performed constituting an Event of Default):
(a) within thirty (30) days of the Closing Date, deliver to Lender certified copies of the policies of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be in accordance with the requirements of Section 6.8 and otherwise satisfactory to Lender and its counsel;
(b) within thirty (30) days of the Closing Date, establish a cash management system satisfying the requirements of Section 2.7 and Section 7.13 and deliver to Lender the fully executed Blocked Account Agreement, Credit Card Agreements, Control Agreements and an updated Schedule 2.7;
(c) On or prior before the date thirty (30) days following the Closing Date, provide to five Lender evidence satisfactory to Lender that the public record in East Baton Rouge, Louisiana reflects that the $900,000 judgment in favor of Parish Xxxxxx et al. has been satisfied or otherwise removed from the public record.
(5d) calendar cause the Collateral Agent Change Date to occur no later than sixty (60) days after the Closing Date;
(e) promptly following the Collateral Agent Change Date, Fourth Third LLC but in no event later than thirty (30) days following the Collateral Agent Change Date, the parties hereto shall enter into an amendment to this Agreement extending the Maturity Date to December 11, 2004, all financing statements, Mortgages, and other filed or recorded documents shall be amended (or assigned by Hibernia to the extent an amendment is insufficient to reflect Lender in its capacity as Collateral Agent) to the extent required by Lender to reflect Lender in its capacity as Collateral Agent and to address such other matters as Lender shall deem necessary in its reasonable discretion (including, without limitation, to reflect the amendment and restatement of the Prior Credit Agreement pursuant to this Agreement and the extension of the Maturity Date to December 11, 2004) and any such amendments (or assignments) shall be recorded or filed, and Lender shall have duly executed received in its own name as Collateral Agent all such certificates of insurance, loss payable endorsements, and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and other items required under the Share Exchange Agreement each in a form reasonably acceptable this Section 3 with respect to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance together with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices other items as may be necessary orrequested by Lender in its capacity as Collateral Agent, in including, without limitation, Modifications to Mortgages and an acknowledgment and agreement by all of the opinion of parties to the Intercreditor Agreement that Lender is the Collateral Agent, desirable to perfect the security interests purported to together with such other acknowledgments and agreements as shall be created reasonably requested by each Security Document.Lender in its capacity as Collateral Agent; and
(ivf) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by promptly following the Collateral Agent and except with respect to any Permitted Liens Change Date, but in no event later than thirty (as defined in 30) days following the Amended and Restated Primary Notes) Collateral Agent Change Date, Lender shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior received endorsements to the second existing mortgagee title insurance policies (2ndor marked commitments to issue the same) calendar day after for the Stockholder Approval DateReal Property Collateral (other than the Additional Real Property Collateral) which were issued in connection with the Mortgages (each a "Mortgage Policy Endorsement" and, collectively, the Company "Mortgage Policy Endorsements") in amounts satisfactory to Lender assuring Lender that the Mortgages, as assigned and as modified by the Modifications to Mortgages, on such Real Property Collateral are valid and enforceable first priority mortgage Liens on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, and the mortgage policies otherwise shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), be in form and substance reasonably acceptable satisfactory to the Collateral AgentLender.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
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Post-Closing Covenants. (i) On or prior to five Within sixty (560) calendar days after following the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
Date (ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) such longer period as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Administrative Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Dateits sole discretion), the Company Administrative Agent shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below)received, in form and substance reasonably acceptable satisfactory to the Collateral Agent.Administrative Agent and the Lenders:
(viA) On or prior fully executed and notarized Mortgage Instruments in recordable form sufficient to the seventy-seventh create a first priority security interest (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable subject to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated certain existing Liens existing as of the Closing Date and set forth on Schedule 1.1(b)) in each of the Mortgaged Properties encumbering the Mortgaged Properties for the benefit of the Secured Parties (it being agreed that no leasehold deeds of trust, leasehold trust deeds, leasehold deeds to secure debt or leasehold mortgages shall be required under this Agreement);
(B) a title report in respect of each of the Mortgaged Properties;
(C) copies of all title insurance policies in the possession of the Borrower which are outstanding and enforceable with respect to the Mortgaged Properties; and
(D) to the extent requested by the Administrative Agent, opinions of counsel to the Credit Parties and their Subsidiaries for each jurisdiction in which the Mortgaged Properties are located; provided, however, that with respect to the real properties of any Credit Party or its Subsidiaries located in the State of New York and owned on the Closing Date, in substantially the form of Exhibit H attached heretono Mortgage Instrument shall be required hereunder and such real properties shall not be Mortgaged Properties under this Agreement.
(ixii) On Within sixty (60) days following the Closing Date (or prior such longer period as agreed to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentAdministrative Agent in its sole discretion), the Credit Parties shall establish and maintain their primary banking relationship (including, without limitation, the establishment of transaction-related bank accounts, main operating accounts and treasury management and investment accounts) with RBS Citizens.
(xiii) On Within forty-five (45) days following the Closing Date (or prior such longer period as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received copies of endorsements with respect to the fifth Credit Parties’ liability, casualty, property and business interruption insurance meeting the requirements set forth herein or in the Security Documents. The Administrative Agent shall be named (5thi) calendar day as lenders’ loss payee, as its interest may appear, with respect to any such insurance providing coverage in respect of any Collateral and (ii) as additional insured, as its interest may appear, with respect to any such insurance providing liability coverage, and the Credit Parties will use their commercially reasonable efforts to have each provider of any such insurance agree, by endorsement upon the policy or policies issued by it or by independent instruments to be furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or cancelled.
(iv) Within thirty (30) days after the date hereofClosing Date (or such longer period of time as agreed to in writing by the Administrative Agent in its sole discretion), the Company Administrative Agent shall have received Deposit Account Control Agreements and Securities Account Control Agreements required to be delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Datein accordance with Section 6.14.
Appears in 1 contract
Post-Closing Covenants. (a) The Warrantors shall procure that, after the Closing, each Group Member will:
(i) On or prior to five (5) calendar days after fully comply with and continuously perfect the Closing Datecorporate governance rules of the Group Members in all respects, Fourth Third LLC shall have duly executed including without limitation, management, environment, health, safety, finance, tax and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.labor;
(ii) On or prior conduct the Business at any time in accordance with applicable Laws and good business practice;
(iii) take all necessary steps to five protect their respective Intellectual Properties and use the Intellectual Properties (5including office software) calendar days after in a lawful manner;
(iv) hire the Closing Dateemployees with professional expertise, (A) the Share Exchange shall have been consummated management capabilities and work experience in accordance with the terms development of the Share Exchange Agreement without any amendmentBusiness; and enter into written labor contracts with all employees as required by the PRC Laws, modification or waiver thereof (except and enter into Intellectual Property transfer, confidentiality and non-compete agreements with the prior written consent all of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.Key Employees;
(iiiv) On or prior to five (5) calendar days after file and pay, in a timely manner, Social Security contributions for all applicable employees, and withhold and pay the Closing Date, employees’ individual portion of Social Security contributions in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) applicable policies and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.PRC Laws;
(vi) On file and withhold all relevant Taxes in a timely manner and in full amount for and on behalf of all employees, independent contractors, creditors, shareholders or prior other Group Members obligated to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation withhold Taxes in accordance with the Secretary PRC Laws in respect of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable any amounts payable or repayable to the Collateral Agent.such Group Member; and
(vii) On gradually settle borrowings or prior Accounts Receivable (if any) with Affiliates and partners in accordance with the specified financial requirements.
(b) If the Transferee waives any of the conditions to the fifth (5th) calendar day after Closing set forth in Section 3.02 based on the date hereof, each undertakings of the Other Investors Warrantors, the Warrantors shall comply with such undertakings and complete the relevant matters within the time period agreed by the Transferee.
(c) The Warrantors shall ensure that the Group Members strictly comply with Anti-corruption Laws in their operations and ensure that each Group Member, their shareholders and Key Employees and the Company shall have Affiliates of the foregoing will not offer, pay, promise to pay or authorize the payment of any money or give anything of value to any Governmental Authority or Government Official for any Governmental Authority (including knowing that all or part of such money or thing of value is likely to be offered, given or promised to be given, directly or indirectly, to any Government Official) for the purpose of: (i) executed the Other Agreements, influencing any act or decision of such Government Official in his or her official capacity; (ii) the Releases, inducing such Government Official to take any actions or omissions in relation to his or her lawful duties; (iii) satisfied or waived all conditions to the closings contemplated by such agreements and securing any improper advantage; (iv) caused their Existing Initial Bridge Warrantsinducing such Government Official to influence or affect any act or decision of any Governmental Authority; or (v) assisting the Group Members in obtaining or retaining Business for or with, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical or directing business to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes)Group Members.
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Equity Transfer Agreement (Alibaba Group Holding LTD)
Post-Closing Covenants. (a) No later than twenty-one (21) Business Days after the Second Amendment Effective Date (or such longer period of time that is agreed to by the Administrative Agent and the Lenders), the Administrative Agent shall have received:
(i) On a Pledge Agreement, or prior to five (5) calendar days after a supplement thereto, from the Closing DateParent pledging, Fourth Third LLC shall have duly executed together with all certificates evidencing the equity interest in Aurizon and delivered to related blank stock powers from the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.Parent;
(ii) On or prior a Pledge Agreement of Aurizon pledging any equity interest it owns in any subsidiary that could be deemed a “Material Subsidiary” pursuant to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms and conditions of the Share Exchange Credit Agreement without together with all certificated pledged equity and related blank stock powers for any amendmentsuch entity; for the avoidance of doubt, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG Aurizon shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) not be required to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor pledge its equity interest in any Person that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.is not a Subsidiary;
(iii) On or prior to five (5) calendar days after a Security Agreement from Aurizon granting the Closing DateAdministrative Agent a security interest in all of its personal property, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.other than Excluded Assets;
(iv) On or prior a first priority (subject only to five Permitted Encumbrances) deed of movable and immovable hypothec (5the “Deed of Hypothec”) calendar days after from Aurizon granting the Closing DateHypothecary Representative a movable hypothec without delivery and immovable hypothec in the amount of Cdn$550,000,000 on all of its present and future movable and immovable property, corporeal and incorporeal, of every nature and kind and wherever situated, save in respect of (a) Excluded Assets and (b) the Company shall have ordered from Initially Excluded Quebec Property (as defined on Exhibit B). Said Deed of Hypothec will include an undertaking by Aurizon to perform all work necessary in respect of the Initially Excluded Quebec Property for it to grant a nationally recognized lien search firm (such as CTsupplemental deed of hypothec in the amount of Cdn$550,000,000 over the Initially Excluded Quebec Property pursuant to Section 5.1(b)(i) below, to provide the elements required by Sections 5.1(b), for delivery below and, if required by the Administrative Agent and so long as such title defects materially and adversely affects title of Aurizon or materially and adversely affects the operation or exploration works of the Casa Xxxxxxx Mine or the Casa Xxxxxxx Regional (as defined in Exhibit B), in the Administrative Agent’s discretion, that are curable, and may be corrected by taking commercially reasonable actions, or that may be covered by title insurance policies, to correct any title defects disclosed by the title opinions referred to in Section 5.1(a)(ix) or in Section 5.1(b)(ii) below (or that are otherwise disclosed from the title work done in connection with the Deed of Hypothec) or to use its commercially reasonable efforts to provide the Administrative Agent with title insurance policies reasonably satisfactory to the InvestorAdministrative Agent covering such title defects; further, true Aurizon will use its commercially reasonable efforts to provide a listing to the Administrative Agent specifically describing each of the Excluded Assets in the Deed of Hypothec by referring to the respective registration number at the Public Register of Real and Immovable Mining Rights in Québec or at the Land Register;
(v) a Guaranty from Aurizon to the Administrative Agent guaranteeing repayment of the Obligations;
(vi) certified copies of UCC search resultsUCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date and post-registration listing all effective financing statements which name statements, lien notices or comparable documents that names the Parent as debtor the Company or any of its Subsidiaries and that are filed in Delaware and comparable searches under the prior five years to perfect an interest BC PPSA and under the Quebec Register of Personal and Movable Real Rights that name Aurizon as debtor as well as at the Public Register of Real and Immovable Mining Rights in any assets thereofQuébec (held by GESTIM Plus), together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any land register of the Collateral (as defined in appropriate land registry division(s), the Security Documents) Register of real rights of State Resource Development and the results Register of searches Public Service Networks and Immovables situated in Territory without a Cadastral Survey;
(vii) UCC financing statements in appropriate form for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by filing under the Collateral Agent and except UCC for the Parent with respect to any Permitted Liens its respective Pledge Agreement and equity interest in Aurizon, financing statements in appropriate form for filing under the BC PPSA for Aurizon with respect to its Security Agreement and a certified statement in appropriate form for filing under the Quebec Register of Personal and Movable Real Rights for Aurizon with respect to its Deed of Movable Hypothec as well as at the Public Register of Real and Immovable Mining Rights in Québec (held by GESTIM Plus), the land register of the appropriate land registry division(s), the Register of real rights of State Resource Development and the Register of Public Service Networks and Immovables situated in Territory without a Cadastral Survey;
(viii) a duly authorized and executed certificate of a Responsible Officer of Parent and Aurizon, certifying (A) that attached thereto is a true and complete copy of each organizational document of such party, as defined applicable, certified, in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (case of the Parent, as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with a recent date by the Secretary of State of Delaware effecting the Capital Increase state of its organization, (B) that attached thereto is a true and complete copy of resolutions duly adopted by such party, as defined belowapplicable, authorizing the execution, delivery and performance of the Loan Documents to which such party is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection with this Agreement; and (D) a certificate as to the good standing of the Parent, as of a recent date, from the applicable Secretary of State of Delaware, a certificate of compliance of Aurizon, as of a recent date, from the Director, Innovation, Science and Economic Development Canada, a “Certificat d’attestation” for Aurizon, as of a recent date, from the “Registraire des entreprises (Québec)” and a certificate of good standing for Aurizon, as of a recent date, issued by the British Columbia Registrar of Companies, (E) any supplementation required for Schedules 3.5, 3.6, 3.7, 3.13, 3.18, 3.27, 3.28, 4.1, 6.2 and 6.3 to the Credit Agreement, in each case subject to Required Lender consent, after giving effect to Aurizon becoming a Loan Party under the Credit Agreement and the consummation of the transactions reflected in this Section 5.1, and (F) a favorable written opinion addressed to the Administrative Agent and the Lenders of Sheppard, Mullin, Xxxxxxx and Xxxxxxx, LLP, U.S. counsel for the Parent and Xxxxxxx Xxxxx & Xxxxxxxxx, LLP and Xxxxxx, de Xxxxx, L.L.P., Canadian counsel for Aurizon, in form and substance, reasonably satisfactory to the Administrative Agent and its legal counsel;
(ix) title insurance policies and/or title opinions, title reports or legal opinions issued by counsel to Aurizon, in each case in form and substance reasonably acceptable satisfactory to the Collateral Administrative Agent and its legal counsel, relative to the immovable properties and Mining Rights charged by the Deed of Hypothec, and specifically described therein, evidencing that the interests created by such Deed of Hypothec thereon constitute valid first Liens thereon free and clear of all title defects and encumbrances other than Permitted Encumbrances or title defects or encumbrances permitted under the Credit Agreement or approved by the Administrative Agent.;
(vix) On or prior use its commercially reasonable efforts to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each provide evidence of the Other Investors registration of Aurizon’s title of acquisition against the immovable properties and Mining Rights charged by the Company shall have (i) executed the Other AgreementsDeed of Hypothec and specifically described therein, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrantsof correction of title defects, if any, Existing Second Bridge Warrantsas required pursuant to Section 5.1(a)(iv) affecting the immovable properties and Mining Rights charged by the Deed of Hypothec and specifically described therein, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants or to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, provide the Series B Notes, identical Administrative Agent with title insurance policies reasonably satisfactory to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Administrative Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.covering same;
Appears in 1 contract
Post-Closing Covenants. (ia) On or prior Notwithstanding the requirements set forth in Section 8.16, with respect to five each Deposit Account, Commodity Account and Securities Account of the Credit Parties in existence on the Effective Date (5other than Excluded Accounts), the Borrower shall, and shall cause each Restricted Subsidiary to, no later than thirty (30) calendar days after the Closing DateEffective Date (or such later date as the Administrative Agent may agree to in its sole discretion), Fourth Third LLC shall have deliver to the Administrative Agent duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), Account Control Agreements in form and substance reasonably acceptable to the Collateral Administrative Agent.
(vib) On or prior to the seventy-seventh date thirty (77th30) calendar day after days following the Stockholder Approval DateEffective Date (or such later date as the Administrative Agent may agree in its reasonable discretion), the Company Borrower shall have filed an amended enter into (and restated Certificate shall thereafter maintain) Swap Agreements with Approved Counterparties in the form of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split swaps, collars (as defined belowother than “three-way collars”), in form and substance floors or other types reasonably acceptable to the Collateral AgentAdministrative Agent pursuant to which the Borrower shall hedge notional volumes covering at least 50% (rounded to the nearest whole percentage point) of the aggregate of the reasonably anticipated projected production of natural gas and natural gas liquids, calculated on a quarterly basis (as forecasted based on the Initial Reserve Report) from the Borrowing Base Properties constituting Proved Developed Producing Reserves for natural gas and natural gas liquids for the period beginning on July 1, 2024 and ending June 30, 2025. For purposes of this paragraph, if the Borrower becomes party to a Swap Agreement by novation of such Swap Agreement from Holdings to the Borrower as the remaining party, the Borrower shall be deemed to have entered into such Swap Agreement.
(viic) On or prior to the fifth date sixty (5th60) calendar day after days following the Effective Date (or such later date hereof, each of as the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled Administrative Agent may agree in exchange for Amended and Restated Primary Notes and, if applicableits reasonable discretion), the Series B Notes, identical to the Amended Borrower shall enter into (and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viiishall thereafter maintain) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, Swap Agreements with Approved Counterparties in the form of Exhibit L attached heretoswaps, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
collars (x) On other than “three-way collars”), floors or prior other types reasonably acceptable to the fifth Administrative Agent pursuant to which the Borrower shall hedge notional volumes covering at least 50% (5throunded to the nearest whole percentage point) calendar day after of the date hereofaggregate of the reasonably anticipated projected production of natural gas and natural gas liquids, calculated on a quarterly basis (as forecasted based on the Initial Reserve Report) from the Borrowing Base Properties constituting Proved Developed Producing Reserves for natural gas and natural gas liquids for the period beginning on July 1, 2025 and ending June 30, 2026. For purposes of this paragraph, if the Borrower becomes party to a Swap Agreement by novation of such Swap Agreement from Holdings to the Borrower as the remaining party, the Company Borrower shall be deemed to have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Dateentered into such Swap Agreement.
Appears in 1 contract
Samples: Credit Agreement (BKV Corp)
Post-Closing Covenants. (a) Except (i) On or prior to five as required (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered including by virtue of being an express condition to the Investor and Closing) or explicitly permitted (including pursuant to Section 2.3(c)(ii)) by the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange terms of this Agreement each in a form reasonably acceptable to the Collateral Agent.
or (ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral AgentPurchaser (such consent not to be unreasonably withheld or delayed), from and after the Closing Date until (A) the earlier of the termination or expiration of, or the Transfer Date in relation to, the relevant Long-dated OTC Transaction or Structured Transaction and (B) the termination or expiration date of the relevant Short-dated OTC Transaction (in case of (A) or (B), as applicable the “Services End Date”), the Partnership and SET shall (and the Partnership shall cause the Partnership Companies, if applicable, to) manage and perform under such Commodity Transactions in a reasonable and prudent manner (x) with adequate personnel and systems and applying standards consistent with those applicable to services performed for its own account and in accordance with its ordinary past practices and (y) consistent with, and subject to, the requirements of the Related Agreements and the Commodity Transaction Contracts related to such Commodity Transactions and applicable Legal Requirements, in each case taking into account the fact that such Commodity Transaction is part of an orderly run off of the Book and wind down of the Business, including:
(ii) maintaining ISO relationships and all ISO SCIDs/ Participant IDs relevant to the Structured Transactions, Long-dated OTC Transactions and Short-dated OTC Transactions, and complying in all material respects with the terms and conditions applicable to SET or, as applicable, its Affiliates in connection therewith;
(iii) in the case of any Structured Transaction (A) timely act upon any physical dispatch or scheduling instructions from the Purchaser and its affiliates, (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) provide prompt notification back to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached heretoPurchaser if any cannot be executed, and (C) PNG provide prompt notification to the Purchaser of any information received by the Seller Parties or the Partnership Companies relevant to the Purchaser’s ability to make decisions or exercise its rights in respect of such Commodity Transactions (including instructions contemplated by clause (A) hereof); Prior to the Closing Date the Parties will consider in good faith entering into a supplement to Schedule 7.13(f) setting forth, (I) a detailed description of the manner in which the foregoing operations and functions are to be performed and the specific standards applicable thereto and/or (II) any supplemental information to be provided by Seller Parties, in each case in relation to each OTC Transaction or Structured Transaction for which the Services End Date has not occurred, it being understood that the Seller Parties shall have appointed sole discretion whether to agree to any such supplement.
(b) From and after the individuals set forth on Table II Closing Date and until the Services End Date in relation to the relevant Structured Transaction:
(i) without limitation of Schedule 1(h)(iiithe provisions of the TRS Agreement, the Purchaser shall have the right to instruct each Seller (and each Subsidiary of any Seller) that is a party to any TRS Agreement (each, a “Seller TRS Party”) in respect of the exercise of, or to refrain from exercising, any discretionary rights or obligations of such Seller TRS Party pursuant to the relevant Reference Transactions included therein and not otherwise included in Control Rights (such rights or obligation, “Discretionary Matters”);
(ii) no Seller TRS Party shall act in respect of any Discretionary Matter in a manner which such Seller TRS Party knows, or reasonably should know, is inconsistent in any material respect with any instructions of the Purchaser delivered pursuant to the foregoing clause (i), except (A) as directors required by *** Material has been omitted pursuant to a request for confidential treatment and has been filed separately. Legal Requirement or (B) as required or explicitly permitted by the terms of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting this Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.including Section 2.3(c)(ii)); and
(iii) On or prior to five (5) calendar days after notwithstanding the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent foregoing clauses (i) certificates representing and (ii), any Seller TRS Party may (but shall not be required to) act in respect of any Discretionary Matter in the Companyabsence of any instruction or any sufficient instruction of the Purchaser (and shall give prompt notice to the Purchaser thereof), where, in a manner consistent with Seller Parties’ obligations under Section 7.13(a), such Seller TRS Party has expressly requested instructions as to the actions to be taken with respect to a Discretionary Matter and the Purchaser has failed to provide the relevant instructions to the Seller TRS Party in a timely manner following the Purchaser’s Subsidiaries’ shares receipt of capital stock such request. No Seller Party or Seller TRS Party shall have any liability hereunder (including pursuant to Article IX hereof) or under any Related Agreement for any Damages incurred by any Person (including any Section 9.2 Indemnified Person) to the extent such subsidiary is arising (x) from a corporation Seller TRS Party’s compliance with its obligations under clause (iii)(A) of Section 7.13(a) or otherwise has certificated capital stock, along with duly executed blank stock powers and clauses (i) or (ii) appropriate financing statements of this Section 7.13(b) or (y) in respect of any Discretionary Matter as a result of such Seller TRS Party acting (or refraining from acting) in reliance on Form UCCclause (iii) of this Section 7.13. The Seller TRS Parties shall have the right to rely upon and comply with instructions and directions sent by e-I mail, facsimile and other similar unsecured electronic methods or delivered orally (including telephonically), in each case by persons reasonably believed by such Seller TRS Party to be duly filed authorized to give instructions and directions on behalf of the Purchaser hereunder and under the applicable TRS Agreement (without any obligation of verification or confirmation. Initially capitalized terms used in such office or offices as may be necessary or, this Section 7.13(b). and not otherwise defined in this Agreement have the meanings set forth in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Documentapplicable TRS Agreements.
(ivc) On Notwithstanding Section 7.13(a), except (x) as set permitted by Section 2.3(c)(ii) or prior to five (5y) calendar days in respect of a Non-Credit Related Adjustment permitted under a Mirror Trade or a De Minimis Action, from and after the Closing Date, the Company Seller Parties shall have ordered from a nationally recognized lien search firm not (such as CT)and shall cause their respective Subsidiaries not to) sell or transfer or materially amend, for delivery to modify, extend, renegotiate or terminate any Short-dated OTC Transaction, Long-dated OTC Transaction or Structured Transaction without the Investor, true copies consent of UCC search results, listing all effective financing statements the Purchaser (which name as debtor the Company or any of its Subsidiaries filed consent may be withheld in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any sole discretion of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate ChangesPurchaser).
(viiid) On or prior In the event that at the Closing not all of the Structured Transactions have Transferred to the fifth Purchaser and the Purchaser and SET mutually agree (5theach acting in good faith), SET will give the Purchaser (or an Affiliate of the Purchaser designated by the Purchaser) calendar day the authority to act in the name of SET in relation to the management of the Structured Transactions that have not yet been novated to the Purchaser or its applicable Affiliates as contemplated by Section 2.3(a) (the “Structured Transaction Portfolio”) in the Ordinary Course of Business and the exercise of Control Rights and rights as to Discretionary Matters in relation to such Structured Transaction Portfolio, which authority will be evidenced by SET through a power of attorney, the exercise of which shall be on such terms, conditions, limitations and restrictions and for such duration as SET and the Purchaser shall mutually agree, each acting in good faith.
(e) From and after the date hereofClosing Date and until the Services End Date in relation to the relevant Structured Transaction, the Investor Seller Parties will provide the Purchaser with access to CMS, EIPP, Credit Workflow, Affinity Reporting Tool and related applications in respect of Structured Transactions. Seller Parties will allow the Purchaser and its Affiliates further reasonable access during normal business hours, and in a manner so as not to interfere with normal operations, to the personnel and books and records of Seller Parties and the Partnership Companies to the extent they relate to the Structured Transactions, and shall provide such other reasonable cooperation and assistance in connection therewith, at the Purchaser’s cost, necessary to enable coordination between the Purchaser and the Seller Parties for the Purchaser to (I) monitor and confirm compliance of Seller Parties from time to time in relation to the operational matters described in Sections 7.13(a) and (b) and (II) receive and process the specific reporting items set out in Schedule 7.13(f) and respond to any reasonable inquiries of the Purchaser from time to time as to the content thereof; provided, that the Seller Parties and their Affiliates shall be permitted to implement any internal controls and limitations as necessary to ensure that the Purchaser does not have received access to any information, data or other material other than to the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLPextent related to the Structured Transactions.
(f) From and after the Closing Date and until the Services End Date in relation to the relevant Long-dated OTC Transaction or Structured Transaction, the Company's outside counselPartnership shall, or shall cause the Partnership Companies to, prepare and deliver to the Purchaser:
(i) the reports set forth on Schedule 7.13(f) for the periods (i.e., daily, weekly or otherwise) indicated thereon, prepared consistently with past practices (including as to form) in relation to the Structured Transactions and Long-Dated OTC Transactions during the six-month period before the date of this Agreement (without prejudice to the ability to receive reports addressing a period longer than six months); and
(ii) any additional reports in respect of the Structured Transactions or the Long-Dated OTC Transactions as are reasonably requested by the Purchaser from time to time; provided, that the actual additional costs of such reports shall be borne by the Purchaser.
(g) From and after the Closing Date until (A) the Services End Date in relation to the relevant Long-dated as OTC Transaction or Structured Transaction and (B) the expiration date of the relevant Short-dated OTC Transaction, the Purchaser shall prepare and deliver to SET the following items of information to the extent such items are determined and available to the Purchaser in connection with its ordinary course valuation of such Commodity Transactions for the Purchaser’s own business purposes, in the existing format in which such information is produced, and without an obligation of the Purchaser to design, format or produce such items of information specifically for purposes of this Section 7.13(g): daily price curves, daily volatility surfaces (including skew), daily correlation curves and other relevant valuation inputs where the relevant Commodity Transactions are Structured Transactions (including forward load assumptions, daily, monthly and cash volatilities for power, oil, gas and price ratios) with respect to the locations that are associated with the relevant Commodity Transactions, with each such curve or input having a tenor that matches the longest tenor of the Commodity Transactions that have not been Transferred; with all such items to be provided by the Purchaser to SET (i) with a reasonable frequency and timing to be agreed by the Parties in good faith and (ii) subject to any standard disclaimers and releases from liability which are applicable to the Purchaser’s provision of similar derivative valuation information to Third Parties under the Purchaser’s standard policies.
(h) From and after the Closing Date, for each relevant reporting period prior to the date on which a Transfer Date has occurred in substantially relation to all Structured Transactions and Long-dated OTC Transactions, the form Sellers shall (or shall cause their respective Subsidiaries to) provide the Purchaser with prompt written confirmation of Exhibit H attached heretoits completion of all material mandatory regulatory reporting in respect of the Business.
(ixi) On From and after the Closing Date, each of (1) the Purchaser, upon the request of the Seller Parties in relation to any events or circumstances occurring on or after the Transfer Date for the relevant Structured Transactions and Long-dated OTC Transactions and (2) the Seller Parties, upon the request of the Purchaser in relation to any events or circumstances occurring prior to the fifth (5th) calendar day after Transfer Date for the date hereofrelevant Structured Transactions and Long-dated OTC Transactions, the Company shall have delivered use its commercially reasonable efforts to provide to the Investor a copy of the Irrevocable Transfer Agent Instructionsapplicable other party, on an as-requested basis, information in the form possession of Exhibit L attached hereto, which instructions shall have been delivered such Person to and acknowledged the extent reasonably required in writing connection with any Proceeding or to respond to any inquiry or request by any Governmental Body (including without limitation any request of a regulatory authority for financial or risk data) or reasonably requested by the Company's transfer agentPurchaser in connection with any dispute with the relevant Counterparty to a Structured Transaction or Long-dated OTC Transaction.
(xj) On or prior Each of the rights and obligations of the Parties and their Affiliates under this Section 7.13 shall be limited to the fifth (5th) calendar day after extent that exercise of such right or performance of such obligation would violate or conflict with any Legal Requirement or Order applicable to such Person. For the date hereofavoidance of doubt and without limiting any other provisions of this Section 7.13, any information, knowledge or data provided by any Party or its Affiliates hereunder shall be Acquired Confidential Information or Seller Confidential Information, as applicable, for all purposes hereunder and under the Company shall have delivered Related Agreements. Notwithstanding anything to the Investor a letter from contrary in this Section 7.13, no Party shall be required to provide, or to cause its Affiliates to provide, any information hereunder to the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Dateextent such information is subject to attorney-client privilege.
Appears in 1 contract
Samples: Transfer Agreement (Royal Bank of Scotland Group PLC)
Post-Closing Covenants. The Borrower agrees to deliver the items set forth below within the specified timeframe (i) On or prior to five (5) calendar days after by such other date as the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each Administrative Agent may approve in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agentwriting), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below)case, in form and substance reasonably acceptable to the Collateral Administrative Agent.:
(via) On within 45 days of the Closing Date, the Agent and the Lenders shall have received a leasehold mortgage in favor of the Administrative Agent with respect to the Borrower’s leasehold interest in the real property located at 0000 Xxxxxx Xxxxxx, Xxxx X, Xxxxxxx, XX 00000;
(b) evidence that (i) the Reorganization has been consummated on or prior to the seventyReorganization Outside Date on terms and in form satisfactory to the Lenders, or (ii) if the Reorganization has not been consummated by the Reorganization Outside Date, evidence satisfactory to the Lenders that each Excluded Subsidiary has complied with the requirements of Section 7.8 and has become a Guarantor under the Loan Documents;
(c) no later than February 28, 2024, the Borrower shall have publicly issued earnings guidance by filing with or furnishing to the SEC a Form 8-seventh K filing, or widely distributing a press release, which shall disclose, or otherwise cleanse the Lenders of, any material non-public information with respect to the Borrower or its Affiliates, or their respective securities, that the Lenders received prior to the Closing Date;
(77thd) calendar day after within 30 days of the Stockholder Approval Closing Date, the Company Borrower shall have filed an amended (x) caused AVITA Medical Pty Limited to be in compliance with Section 7.8, including such agreements, documents, filings and restated Certificate registrations as may be necessary to cause a security interest in the assets (other than Excluded Property) of Incorporation such Subsidiary to be granted and perfected by such Subsidiary in accordance with the Secretary Laws of State of Delaware effecting Australia, and (y) delivered to the Reverse Stock Split (as defined below)Administrative Agent, in form and substance reasonably acceptable satisfactory to the Collateral Administrative Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed a share certificate evidencing all of the Other Agreementsshares in such Subsidiary, duly endorsed in blank by the Borrower, and (ii) such agreements, documents, filings and registrations (including customary share pledge agreements) as may be necessary to cause a security interest in all of the Releases, (iii) satisfied or waived all conditions to issued and outstanding Capital Securities held by the closings contemplated by Borrower in such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants Subsidiary to be cancelled granted and perfected by the Borrower, in exchange for Amended and Restated Primary Notes and, if applicable, each case in accordance with the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).Laws of Australia;
(viiie) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as within 30 days of the Closing Date, in substantially the form Administrative Agent shall have received evidence that all deposit accounts, lockboxes, disbursement accounts, investment accounts or other similar accounts of Exhibit H attached hereto.the Borrower and each Guarantor are Controlled Accounts (other than Excluded Accounts);
(ixf) On or prior to within 30 days of the fifth (5th) calendar day after the date hereofClosing Date, the Company Borrower shall have delivered insurance endorsements described in Section 7.4, evidencing property and liability coverage required to be maintained pursuant to each Loan Document, with the Administrative Agent named as loss payee or additional insured, as applicable; and
(g) within 20 days of the Closing Date, the Borrower shall have delivered to the Investor a copy of the Irrevocable Transfer Administrative Agent Instructions, an Intercompany Note (as defined in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing Security Agreement) duly executed by the Company's transfer agentBorrower and the Subsidiaries.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. (i) On or prior to five Within sixty (560) calendar days after following the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
Date (ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) such longer period as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Administrative Agent in its sole discretion), the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and except the Lenders:
(A) fully executed and notarized Mortgage Instruments in recordable form sufficient to create a first priority security interest (subject to certain existing Liens existing as of the Closing Date and set forth on Schedule 1.1(b)) in each of the Mortgaged Properties encumbering the Mortgaged Properties for the benefit of the Secured Parties (it being agreed that no leasehold deeds of trust, leasehold trust deeds, leasehold deeds to secure debt or leasehold mortgages shall be required under this Agreement);
(B) a title report in respect of each of the Mortgaged Properties;
(C) copies of all title insurance policies in the possession of the BorrowerBorrowers which are outstanding and enforceable with respect to the Mortgaged Properties; and
(D) to the extent requested by the Administrative Agent, opinions of counsel to the Credit Parties and their Subsidiaries for each jurisdiction in which the Mortgaged Properties are located; provided, however, that with respect to the real properties of any Credit Party or its Subsidiaries located in the State of New York and owned on the Closing Date, no Mortgage Instrument shall be required hereunder and such real properties shall not be Mortgaged Properties under this Agreement.
(ii) Within sixty (60) days following the Closing Date (or such longer period as agreed to in writing by the Administrative Agent in its sole discretion), the Credit Parties shall establish and maintain their primary banking relationship (including, without limitation, the establishment of transaction-related bank accounts, main operating accounts and treasury management and investment accounts) with RBS Citizens.
(iii) Within forty-five (45) days following the Closing Date (or such longer period as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received copies of endorsements with respect to the Credit Parties’ liability, casualty, property and business interruption insurance meeting the requirements set forth herein or in the Security Documents. The Administrative Agent shall be named (i) as lenders’ loss payee, as its interest may appear, with respect to any Permitted Liens such insurance providing coverage in respect of any Collateral and (ii) as defined in the Amended and Restated Primary Notes) shall either (x) not show additional insured, as its interest may appear, with respect to any such Liens insurance providing liability coverage, and the Credit Parties will use their commercially reasonable efforts to have each provider of any such insurance agree, by endorsement upon the policy or policies issued by it or by independent instruments to be furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or cancelled.
(iv) Within thirty (30) days after the Closing Date (or such longer period of time as defined agreed to in writing by the Amended Administrative Agent in its sole discretion), the Administrative Agent shall have received Deposit Account Control Agreements and Restated Primary Notes) or (y) Securities Account Control Agreements required to be accompanied delivered in accordance with evidence that such Liens have been terminatedSection 6.14.
(v) On To the extent not delivered on the Closing Date, within forty-five (45) says after the Closing Date (or prior such longer period of time as agreed to in writing by the Administrative Agent in its sole discretion), the Administrative Agent shall have received stock or membership certificates, evidencing the Equity Interests pledged to the second Administrative Agent pursuant to the Pledge Agreement and undated stock or transfer powers duly executed in blank.
(2ndvi) calendar day Within forty-five (45) days after the Stockholder Approval DateFirst Amendment Effective Date or such longer period of time as agreed to in writing by the Administrative Agent in its sole discretion), the Company Administrative Agent shall have filed an amended and restated Certificate received owner’s title policies with respect to each of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined belowproperties set forth on Schedule 5.16(e), in each case, in form and substance reasonably acceptable satisfactory to the Collateral Administrative Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. 1. Notwithstanding anything to the contrary in the Amended Credit Agreement, no later than 15 days following the Northeast Transition Date (or such longer period as may be agreed to by the Administrative Agent in its sole discretion), to the extent not previously provided to the Administrative Agent or Administrative Collateral Agent, as applicable, such Agent shall have received from Cott NE Retail Holding Inc. and Northeast Xxxxx, Inc. (the “Joining Companies”) (i) On a Joinder Agreement, together with such other agreements, security documents, secretary’s certificates, officer’s certificates, resolutions and opinions of counsel, in each case as may be reasonably required by the Administrative Agent, (ii) certificates representing the shares of Equity Interests owned by any Joining Companies together with undated stock powers for such certificates executed in blank by a duly authorized officer of the pledgor thereof, and (iii) promissory notes, if any, owned or prior held by any Joining Company, endorsed without recourse in blank or accompanied by an executed transfer form in blank by the pledgor thereof; provided, however, that no Joining Company shall be required to five pledge any Equity Interests that it owns in Northeast Retailer Brands LLC so long as such Equity Interests constitute Excluded Assets (5as defined in the U.S. Security Agreement) calendar days after under clause (f) of such definition. For purposes of this Section IV, an officer is duly authorized to execute such stock power, allonge or transfer form if he or she is serving in the Closing Date, Fourth Third LLC shall have duly executed and capacity set forth on such power or transfer form at the time such power or transfer form is delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Administrative Collateral Agent.
2. Notwithstanding anything to the contrary in any other Loan Document, no later than 30 days following the completion of the 2015 Reorganization (or such longer period as may be agreed to by the Administrative Agent and each Collateral Agent, each in its sole discretion), to the extent not previously provided to the Administrative Collateral Agent or the UK Security Trustee, as applicable, such Agent shall have received (i) stock certificates and stock powers or stock transfer forms, as applicable, for each certificate representing the shares of Equity Interests transferred or created and in existence upon the completion of the 2015 Reorganization, in the case of each stock power or stock transfer form, executed in blank by a duly authorized officer of the pledgor thereof, (ii) On promissory notes and allonges or prior to five (5) calendar days after transfer forms, as applicable, for each promissory note transferred or created and in existence upon the Closing Datecompletion of the 2015 Reorganization, in the case of each allonge or transfer form, executed in blank by a duly authorized officer of the pledgor thereof, (Aiii) the Share Exchange shall have been consummated in accordance with the terms a certificate of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent Loan Parties signed by an authorized officer of the Collateral AgentCompany certifying as to the accuracy and completeness of, and attaching, an updated Schedule 3.15 to the Credit Agreement together with a redline against the original Schedule 3.15 to the Credit Agreement solely reflecting changes to the ownership of the Equity Interests and intercompany Indebtedness of the Loan Parties and their respective Restricted Subsidiaries resulting from the 2015 Reorganization (such updated Schedule 3.15, the “Reorganization Schedule”), and (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iiiiv) to the offices set forth opposite their names on Table I extent not previously required to be provided, such security agreements, control agreements and other documents as may be reasonably requested by the Administrative Agent in order to create and perfect a security interest in favor of Schedule 1(h)(iii) attached heretothe Administrative Collateral Agent, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered subject to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing DatePermitted Perfection Limitations, in accordance with the terms of the Security Loan Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Cott Corp /Cn/)
Post-Closing Covenants. (ia) On Within 90 days (or prior to five (5such longer period as permitted by the Collateral Agent in its sole discretion) calendar after the Amendment No. 4 Effective Date, but in any event within 180 days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Amendment No. 4 Effective Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery deliver to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except the Holders the following:
(i) deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, in form reasonably satisfactory to the Collateral Agent and its counsel and counsel for the Required Holder(s), and covering all unencumbered property interests held by the Company and each Guarantor as reflected on the Perfection Certificate (other than any such real property that the Collateral Agent and the Required Holder(s) each determines a perfected Lien is unnecessary due to the cost in relation to the benefit; provided, however, that such determination by the Required Holder(s) shall not be required so long as the aggregate amount of the cost of all real property with respect to any Permitted Liens which the Collateral Agent has determined under this paragraph 5W(i) a lien is unnecessary does not exceed $10,000,000), duly executed by the Company or such Guarantor;
(as defined ii) account control agreements in form reasonably satisfactory to the Amended Collateral Agent and Restated Primary Notescounsel to the Required Holder(s) shall either and duly executed by the appropriate parties with respect to each deposit account and each securities account of the Company and each Subsidiary that is not already the subject to an account control agreement in favor of the Collateral Agent; and
(xiii) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have all insurance required to be maintained pursuant to the Loan Documents has been terminatedobtained and is in effect, together with the certificates of insurance, naming the Collateral Agent, on behalf of the Holders, the Banks and the Administrative Agent under the Bank Agreement, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Company and its Subsidiaries that constitute Collateral.
(vb) On or prior to the second (2nd) calendar day Within 5 Business Days after the Stockholder Approval Amendment No. 4 Effective Date, the Company shall have filed an deliver to each Holder duly executed (i) amended and restated Notes to reflect the amendments thereto made in Amendment No. 4 and (ii) Related PIK Notes.
(c) Within 45 days after the Amendment No. 4 Effective Date, the Company shall deliver to the Collateral Agent and the Holders, a complete and duly executed updated Perfection Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable satisfactory to counsel to the Collateral AgentHolders.”
(vir) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate ChangesParagraph 6A(1).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. The Loan Parties shall deliver (ior shall cause to be delivered) the following documents or shall complete (or shall cause to be completed) the following tasks, as applicable, in each case no later than the dates specified below:
(a) The Loan Parties shall commence all preparatory steps as may be reasonably requested by the Administrative Agent to effect the implementation of the final Contingency Transition Plan, including taking all actions (by the timeframes specified therefor) as may be agreed to separately by the Lead Borrower and the Administrative Agent as of the date hereof, in each case to the reasonable satisfaction of the Administrative Agent (the “Contingency Plan Requirements”).
(b) On or prior to five before March 14, 2024 (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) such later date as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Administrative Agent in its sole discretion), the Loan Parties shall (and shall cause their advisors and representatives to) be available to conduct an in-person meeting (or, if agreed to by the Administrative Agent in its sole discretion, a video or telephonic meeting) with the Administrative Agent and except with respect its advisors and representatives (including counsel) to any Permitted Liens (as defined in discuss the Amended Contingency Plan Requirements and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminatedother alternative transactions.
(vc) On or prior to before April 3, 2024 (the second (2nd) calendar day after the Stockholder Approval “Anticipated Signing Date”), the Company Administrative Agent shall have filed an amended and restated Certificate received the following documents, each of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), which shall be in form and substance reasonably satisfactory to the Administrative Agent in its sole discretion (provided that, the Anticipated Signing Date may be extended in writing by the Administrative Agent (in its sole discretion) to April 10, 2024 (the “Extended Signing Date”)): (i) a duly executed and effective commitment letter by one or more financial institutions and the Lead Borrower, which shall, among other things, provide for debt financing sufficient (when taken together with the equity commitments set forth in the Standby Purchase Agreements referred to below) to cause all Secured Obligations to be Fully Satisfied (the “Debt Financing”) and provide for an outside closing date of no later than May 1, 2024 (the “Targeted Closing Date”) (the “Debt Financing Commitment Letter”); (ii) a duly executed and effective commitment letter by TopLids LendCo, LLC, each other lender party thereto and the Lead Borrower, which shall, among other things, permit the incurrence of the Debt Financing, contemplate certain amendments to the Subordinated Term Loan Agreement and provide for an outside closing date of no later than the Targeted Closing Date (the “2L Commitment Letter”); and (iii) Standby Purchase Agreements between the Lead Borrower and one or more existing equity holders of the Lead Borrower or other Persons (in each case, acceptable to the Collateral Administrative Agent), which shall, among other things, provide for backstop equity commitments to purchase additional equity interests of the Lead Borrower or other equity purchases (in each case, acceptable to the Administrative Agent) and provide for an outside closing date of no later than the Targeted Closing Date (collectively, the “Standby Purchase Agreements”).
(vid) On Within one (1) Business Day (or prior such later date as agreed to in writing by the Administrative Agent in its reasonable discretion) after the Anticipated Signing Date (or, to the seventy-seventh extent that such date has been extended pursuant to clause (77thc) calendar day after the Stockholder Approval Dateabove, the Company Extended Signing Date), the Loan Parties shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below)a Form S-1 Registration Statement, which shall be in form and substance reasonably acceptable to the Collateral AgentAdministrative Agent in its sole discretion (the “Form S-1”, together with the Standby Purchase Agreements, the Debt Financing Commitment Letter and the 2L Commitment Letter, collectively, the “Specified Refinancing Documents”) with each applicable Governmental Authority (including the SEC) necessary for consummation of the transactions contemplated therein.
(viie) On or prior to before the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Targeted Closing Date, the Loan Parties shall have consummated the transactions contemplated by the Specified Refinancing Documents in substantially accordance with the form of Exhibit H attached hereto.
terms thereof (ix) On or prior with such modifications as may be acceptable to the fifth Administrative Agent and the Lenders in their sole discretion) (5th) calendar day after the date hereofsuch transactions, collectively, the Company shall have delivered “Specified Refinancing Transaction”). Notwithstanding anything to the Investor a copy contrary contained in the Amended Credit Agreement, the Loan Parties acknowledge and agree that the failure to comply with this Section 4 within the times provided herein shall constitute an immediate Event of Default under Section 8.01(b) of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentAmended Credit Agreement.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. 9.1 The Saleen Parties acknowledge that the agreements contained in this Section 9.1 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, W270 would not enter into this Agreement. The Saleen Parties acknowledge and agree that the failure by W270 or the Saleen Parties to satisfy, perform and comply with the covenants set forth in this Section 9.1 (i“Post-Closing Covenants”) On or prior to five (5) calendar days after following the Closing Datewill have a material adverse effect on W270, Fourth Third LLC shall have Verdad, and W-Net and the investment of the participants in the Capital Raise. During the period beginning upon the Closing and ending on the first anniversary of the Closing, the Saleen Parties agree to satisfy, perform and comply with, and the Saleen Parties agree to cause W270 to satisfy, perform, and comply with, the following agreements and covenants:
9.1.1 Remain a Section 12(g) reporting company in compliance with and current in its reporting requirements under the Exchange Act, and remain quoted on, at a minimum, the OTC BB;
(a) Certify in writing to any person holding restricted shares of W270 Common Stock as of the date of this Agreement (or having obtained such shares in or by virtue of the Capital Raise) that W270 has filed all of the reports required to be filed by it under the Exchange Act to enable such person to sell such shares under Rule 144 or Rule 145 promulgated under the Securities Act (including any rule adopted in substitution or replacement thereof) (“Rule 144 or 145”), as may be applicable in the circumstances, or will inform such person in writing that it has not filed any such report or reports, upon being informed in writing by such person of its intent to sell any such shares under Rule 144 or 145, (b) if any certificate representing any restricted shares of W270 Common Stock is presented to W270’s transfer agent for registration of transfer in connection with any sale theretofore made or to be made under Rule 144 or 145, provided such certificate is duly endorsed for transfer by the appropriate person(s) or accompanied by a separate stock power duly executed by the appropriate person(s) in each case with reasonable assurances that such endorsements are genuine and effective, and is accompanied by an opinion of counsel satisfactory to W270 and its counsel that such transfer has complied with the requirements of Rule 144 or 145 (“Opinion”), as the case may be, and is not restricted by any applicable state securities law requirement, promptly instruct the Transfer Agent to register such transfer and to issue one or more new certificates representing such shares to the transferee and, if appropriate under the provisions of Rule 144 or 145, as the case may be, and state securities law requirements, free of any stop transfer order or restrictive legend, and (c) in the event W270’s counsel is unwilling or unable to issue such Opinion, W270 hereby agrees to accept, and shall instruct its counsel to accept, an Opinion of Sxxxxx Axxxxxxx & Markiles, LLP or such other reasonable counsel selected by Verdad or W-Net, and W270 and its counsel shall hereby authorize the transfer agent to accept the Opinion of Sxxxxx Axxxxxxx & Markiles, LLP (or such other reasonable counsel selected by Verdad or W-Net) for such purposes (“Transfer Agent Authorization”), which Transfer Agent Authorization shall be delivered to the Investor transfer agent prior to Closing, or at such other time requested by Verdad or W-Net, with a copy to Verdad and the Company the intercreditor agreement W-Net;
9.1.3 Respond in a timely manner, and consent to the transactions contemplated hereby satisfaction of the SEC, to any review or inquiry by the SEC to the Transaction Form 8-K.
9.1.4 Comply with the terms and under conditions of the Share Exchange Agreement Voting Agreement.
9.1.5 Hold meetings of W270’s board of directors at least once each fiscal quarter; and schedule regular meetings for the audit and compensation committees, with advance notice to all directors, and insure that such committee meetings are properly held as scheduled.
9.1.6 File within the statutory time limits any required filings or notifications with the SEC, FINRA and any other federal, state, foreign government or regulatory agency including any agency or organization with jurisdiction over any exchange on which W270’s securities are listed or quoted.
9.1.7 Engage certified public accountants that are at all times registered with the PCAOB and, in the event W270’s certified public accountants resign or are terminated for any reason, W270 shall promptly engage a new certified public accountant registered with the PCAOB.
9.1.8 Add independent directors, create audit, compensation and other committees, and comply with the provisions of the Sxxxxxxx-Xxxxx Act of 2002, and take such other actions as required by applicable laws and regulations regarding corporate governance.
9.1.9 Adopt proper disclosure, ixxxxxx xxxxxxx and code of ethics policies to the extent required by law or applicable regulation.
9.1.10 Pay, when due, all transfer agent fees, listing fees and any other fees the non-payment of which may adversely effect compliance with applicable laws and regulations (including securities laws and regulations) or the listing or quotation of W270’s securities.
9.1.11 File all tax returns of any kind in a form timely manner, and pay, when due, all tax obligations of any kind or nature.
9.1.12 Not later than 30 days following the Closing, engage an investor relations firm reasonably acceptable to the Collateral Agent.
(ii) On or prior Verdad and W-Net to five (5) calendar days after provide customary services to W270 following the Closing Date, (A) at a cost of no more than $20,000 for the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG first 3 months and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor$5,000 per month thereafter.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Merger Agreement (W270, Inc.)
Post-Closing Covenants. The Borrowers, jointly and severally, covenant and agree as follows:
(i) On or prior to five (5) calendar days after By no later than June 14, 2002, the Closing Date, Fourth Third LLC Company shall have duly executed and delivered retain an investment banking firm acceptable to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in Administrative Agent, which firm shall promptly develop a form plan reasonably acceptable to the Collateral Administrative Agent and the Majority Lenders to explore all strategic options available to the Company, including, without limitation, asset dispositions, refinancings and equity investments (the "Tokheim 2002 Strategic Plan"). The Company shall diligently pursue the Tokheim 2002 Strategic Plan (it being understood the Company is not obligated to accept any proposals submitted in connection with the Tokheim 2002 Strategic Plan), and the Company and representatives of such investment banking firm shall meet with (including by conference telephone) and update the Administrative Agent and the Lender Steering Committee with respect to developments and progress in effectuating the Tokheim 2002 Strategic Plan every two weeks and at such other intervals as shall be requested from time to time by the Administrative Agent.;
(ii) On By no later than July 15, 2002, the Company shall provide copies to the Administrative Agent of its final offering circular or prior to five memorandum in respect of the Tokheim 2002 Strategic Plan;
(5iii) calendar days after By no later than August 15, 2002, the Closing Date, (A) the Share Exchange Company shall have been consummated completed the solicitation (and shall have provided copies to the Administrative Agent) of non-binding proposals from all interested parties in accordance with respect of the Tokheim 2002 Strategic Plan; and
(iv) By no later than September 30, 2002, the Company shall have completed the solicitation (and shall have provided copies to the Administrative Agent) of final binding proposals from all interested parties in respect of the Tokheim 2002 Strategic Plan;
(b) The Company shall, at all times, retain interim or permanent chief executive and chief financial officers reasonably acceptable to the Administrative Agent;
(c) Neither the Company nor any Subsidiary shall (i) accept any settlement of its claims against Schlumberger Limited or (ii) enter into or consummate any Asset Sale if the Net Cash Proceeds of such Asset Sale would be in excess of $1,000,000, unless in each case the terms of thereof shall be reasonably acceptable to the Share Exchange Agreement Administrative Agent; and
(d) Neither the Company nor any Subsidiary shall, without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Administrative Agent), (B) PNG shall exercise any permissive right or other option it may have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent effectuate (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion termination of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On ESOP or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releasesredemption of any ESOP Preferred Stock held by the trustee for the ESOP; it being expressly acknowledged and agreed that any failure to keep, perform and/or satisfy such undertakings set forth in the foregoing subsections 7(a)-(d) (iiix) satisfied or waived all conditions to shall constitute an Event of Default under the closings contemplated by such agreements Credit Agreement and the rights and remedies of the Agents and the Lenders arising as a result thereof under the Credit Agreement and the other Loan Documents are hereby expressly preserved and (ivy) caused their Existing Initial Bridge Warrants, shall cause the waivers set forth in Section 1 above to become immediately null and void and such waivers shall be treated as if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes)they were never granted.
(viiie) On The Borrowers jointly and severally covenant and agree that any amounts realized by any Borrower or prior to the fifth any Subsidiary from any life insurance policy in connection with (5thi) calendar day after the date hereof, the Investor shall have received the opinions settlement of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, any claim by a vested participant in the Company's outside counsel, dated as Supplemental Executive Retirement Plan in excess of the Closing Dateamount of such settlement or (ii) termination or surrender of any life insurance policy covering any participant, in substantially each case net of direct costs and expenses incurred in connection therewith, shall be deemed Designated Proceeds under Section 6.2.2(a) of the form Credit Agreement, shall be applied as prepayments of Exhibit H attached hereto.
(ix) On the Loans concurrently with receipt thereof by such Borrower or prior Subsidiary and shall be applied to the fifth (5thLoans as set forth in the last sentence of Section 6.2.2(a) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, Credit Agreement in the form of Exhibit L attached hereto, which instructions same manner as proceeds received under Section 6.2.2(a)(vii) thereof. This provision shall have been delivered to be deemed an additional covenant and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days agreement of the Closing Date.Borrowers under Section 6.2.2 of the Credit Agreement and amends and restates in its entirety subsection 6(b) of the Waiver and Consent. ---------------
Appears in 1 contract
Post-Closing Covenants. (ia) On or prior to five Within thirty (530) calendar days after the Closing DateDate (or such extended period of time as agreed to by the Administrative Agent), Fourth Third LLC the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, such Intellectual Property filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in the Intellectual Property;
(b) Within sixty (60) days after the Closing Date (or such extended period of time as agreed to by the Administrative Agent), the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, such duly executed account control agreements as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest under the UCC in Collateral for which a control agreement is required for perfection;
(c) Within sixty (60) days after the Closing Date (or such extended period of time as agreed to by the Administrative Agent), the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, copies of insurance policies or certificates and endorsements of insurance evidencing liability and casualty insurance meeting the requirements set forth in Section 6.08;
(d) Within 45 days of the Closing Date (or such extended period of time as agreed to by the Administrative Agent), the Company will, and will cause each Subsidiary Guarantor to, grant to the Collateral Agent for the benefit of the Secured Parties, Mortgages on the Mortgaged Properties. All such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent and shall constitute valid and enforceable First Priority Liens. The Additional Collateral Documents or instruments related thereto shall have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Collateral Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full. In the case of any Mortgages pursuant to this Section 6.12(d), the Borrower or the respective Subsidiary Guarantor shall deliver to the Collateral Agent:
(i) a fully executed counterpart of such Mortgage and corresponding UCC fixture filings, in form and substance reasonably satisfactory to the Collateral Agent, which Mortgage and UCC fixture filings shall cover such Mortgaged Property, together with evidence that counterparts of such Mortgage and UCC fixture filings have been delivered to the Investor title insurance company insuring the Lien of such Mortgage for recording;
(ii) a Mortgage Policy relating to such Mortgage of the respective Mortgaged Property, issued by a title insurer reasonably satisfactory to the Collateral Agent, in an insured amount satisfactory to the Collateral Agent and insuring the Collateral Agent that the Mortgage on such Mortgaged Property is a valid and enforceable First Priority mortgage lien on such Mortgaged Property, free and clear of all defects and encumbrances except Permitted Encumbrances, with such Mortgage Policy (1) to be in form and substance reasonably satisfactory to the Collateral Agent, (2) to include, as requested by the Collateral Agent, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to future advances under this Agreement and Swap Agreements with Lender Counterparties, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so called comprehensive coverage over covenants and restrictions and for any other matters that the Collateral Agent in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Collateral Agent in its discretion may reasonably request;
(iii) to induce the title company to issue the Mortgage Policy referred to in clause (ii) above, such affidavits, certificates, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the title company, together with payment by the Company of all Mortgage Policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the intercreditor agreement recording of such Mortgage and consent issuance of such Mortgage Policy;
(iv) a survey of such Mortgaged Property (and all improvements thereon) (1) prepared by a surveyor or engineer licensed to perform surveys in the state where such Mortgaged Property is located, (2) dated as of a date reasonably acceptable to the transactions contemplated hereby and under Administrative Agent, (3) certified by the Share Exchange Agreement each surveyor (in a form manner reasonably acceptable to the Collateral Agent) to the Collateral Agent in its capacity as such and the title company, (4) complying in all respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date or preparation of such survey, and (5) sufficient for the title company to remove all standard survey exceptions from the Mortgage Policy relating to such Mortgaged Property and issue the endorsements required pursuant to the provisions of clause (ii) above;
(v) to the extent requested by the Collateral Agent, copies of all leases in which the Company or any Subsidiary Guarantor holds the lessor’s interest or other agreements relating to possessory interests, if any; provided that, to the extent any of the foregoing affect such Mortgaged Property, to the extent requested by the Collateral Agent, such agreements shall be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Collateral Agent); and
(vi) flood certificates covering such Mortgaged Property in form and substance acceptable to the Collateral Agent, certified to the Collateral Agent in its capacity as such and whether or not such Mortgaged Property is located in a flood hazard area, as determined by designation of each such Mortgaged Property in a specified flood hazard zone by reference to the applicable FEMA map.
(iie) On or prior to five Within sixty (560) calendar days after the Closing Date, Date (A) or such extended period of time as agreed to by the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Administrative Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Administrative Agent (i) the pledged notes and/or stock certificates representing evidencing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created interest owned by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed Subsidiary Guarantors listed on Schedule IX and a duly executed in blank undated stock or transfer power with respect thereto or made other arrangements with respect thereto to the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any reasonable satisfaction of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Administrative Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Corelogic, Inc.)
Post-Closing Covenants. (ia) On or prior to five Loan Parties shall, within ninety (590) calendar days after of the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each Date (or such later date as agreed upon by Administrative Agent in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agentits sole discretion), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) deliver to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Administrative Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable satisfactory to Administrative Agent, deposit account control agreements with respect to each Controlled Account maintained at a Controlled Account Bank, which shall be duly authorized, executed and delivered by Borrower and the Collateral Agentapplicable Controlled Account Bank; provided that the Borrower shall use commercially reasonable efforts to provide such control agreements as soon as commercially practicable immediately following the Closing Date.
(vib) On Loan Parties shall, within one hundred twenty (120) days of the Closing Date (or prior such later date as agreed upon by Administrative Agent in its sole discretion), deliver to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below)Administrative Agent, in form and substance reasonably acceptable satisfactory to Administrative Agent, Mortgages with respect to the Collateral AgentReal Properties of such Loan Parties, which shall be duly authorized, executed and delivered by the applicable Loan Parties.
(viic) On or prior to the fifth The Borrower shall, within one hundred twenty (5th180) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing DateDate (or such later date as agreed upon by Administrative Agent in its sole discretion), solely to the extent that RedfinNow Borrower LLC constitutes a Subsidiary (and does not constitute an Immaterial Subsidary) at such time, cause RedfinNow Borrower LLC to expressly join in this Agreement as a Loan Party and become jointly and severally liable for the obligations of Loan Parties hereunder, under the Notes, and under any other agreement between any Loan Party and Lenders pursuant to a joinder in form and substance consistent with Exhibit 7.12 hereto, and deliver all Other Documents required to comply with Sections 6.11 and 7.12 hereof. (d) Loan Parties shall, within ninety (90) days of the Closing Date (or such later date as agreed upon by Administrative Agent in its sole discretion), deliver to Administrative Agent, in form and substance satisfactory to Administrative Agent, all insurance endorsements required pursuant to Section 6.6(a)(B) hereof. VII.
Appears in 1 contract
Post-Closing Covenants. (ia) On or prior With respect to each Initial Project, within five (5) calendar days after Business Days following the Closing Dateexecution of each Revenue Agreement, Fourth Third LLC shall have duly executed and delivered interconnection agreement, site lease or license, or any other Material Project Document (other than any Material Subcontract) related to such Initial Project that requires consent to any assignments of such Material Project Document by the counterparty thereto (including any collateral assignment to the Investor and Lender or any subsequent assignment by the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each Lender in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms respect of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agentsuch collateral assignment), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) submit an appropriate request to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached heretosuch counterparty to provide such consent, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investorthereafter diligently pursue such requested consent, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable satisfactory to the Collateral AgentLender, until the same has been obtained.
(vib) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate As of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions Equity Interests of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as each of the Closing Date, in substantially the form of Exhibit H attached hereto.
Initial Project Company Guarantors is owned by Holdco. Within thirty (ix30) On or prior to the fifth (5th) calendar day after days following the date hereof, the Company Borrower shall have delivered acquire all of such Equity Interests from Holdco, subject to the Investor a copy pledge of such Equity Interests in favor of the Irrevocable Transfer Agent InstructionsLender, in and shall provide to the form of Exhibit L attached hereto, which instructions shall Lender an executed supplement to the Security Agreement reflecting that such Equity Interests have been delivered pledged to and acknowledged in writing by the Company's transfer agentLender pursuant to such Security Agreement.
(xc) On or prior to the fifth Within sixty (5th60) calendar day after days following the date hereof, the Company Borrower shall provide to the Lender a fully-executed deposit account control agreement with respect to the Project Revenue Account maintained by Bakersfield with the Depository Bank, which deposit account control agreement shall provide for springing dominion and control of such Project Revenue Account in favor of the Lender.
(d) Within ten (10) Business Days following the date hereof, the Borrower shall have delivered to the Investor a letter from the CompanyLender’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days counsel all original certificates evidencing Holdco’s pledge of the Closing DateEquity Interests in Borrower, including Certificate No. A-001, together with appropriate, original transfer powers executed in blank.
Appears in 1 contract
Post-Closing Covenants. (a) The Borrowers jointly and severally covenant and agree that they shall:
(i) On or prior to five (5) calendar days after the Closing Dateby not later than April 19, Fourth Third LLC shall have duly executed and delivered to the Investor and 2002, retain an interim turnaround chief financial officer of the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form who shall be reasonably acceptable to the Collateral Agent.Administrative Agent and the Required Lenders; and
(ii) On or prior to five by the earlier of (5) calendar days after the Closing Date, (Ai) the Share Exchange shall have been consummated date on which the annual audit report of the Company and its Subsidiaries in accordance respect of Fiscal Year 2001 reported on Form 10-K is filed with the SEC or (ii) April 30, 2002, agree to and execute a binding term sheet that shall set forth the material terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent Company's plan of recapitalization and restructuring of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I balance sheets of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s its Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) term sheet shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), acceptable in form and substance reasonably acceptable to the Collateral Administrative Agent.; it being expressly acknowledged and agreed that any failure to keep, perform and/or satisfy such undertakings set forth in this Section 6(a) (x) shall constitute an immediate Event of Default under the Credit Agreement and the rights and remedies of the Agents and the Lenders arising as a result thereof under the Credit Agreement and the other Loan Documents are hereby expressly preserved and (y) shall cause the waiver set forth in Section 1 above and the consent set forth in Section 2 above to become immediately null and void and such waiver and such consent shall be treated as if they were never granted; and
(vib) On or prior to The Borrowers jointly and severally covenant and agree that any amounts realized by any Borrower from a whole life insurance policy in connection with settlement of any claim by a vested participant in the seventy-seventh Company's Supplemental Executive Retirement Plan in excess of the amount of such settlement (77thnet of direct costs and expenses incurred in connection therewith) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split be deemed Designated Proceeds under Section 6.2.2
(as defined below), in form and substance reasonably acceptable to the Collateral Agent.
a) (vii) On or prior (but without giving effect to the fifth (5thproviso thereunder) calendar day after the date hereof, each of the Other Investors Credit Agreement, and the Company accordingly such excess proceeds shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions be applied to the closings contemplated by such agreements and (ivLoans as set forth in the last sentence of Section 6.2.2(a) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company Credit Agreement. This provision shall have delivered to the Investor a copy be deemed an additional covenant and agreement of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days Borrowers under Section 6.2.2 of the Closing DateCredit Agreement.
Appears in 1 contract
Samples: Waiver and Consent (Tokheim Corp)
Post-Closing Covenants. The Parties agree as follows with respect to the period following the Closing Date:
(i) On or prior to five (5) calendar days Promptly after the Closing Date, Fourth Third LLC the Company, shall have duly executed and delivered form a committee of the Board of Directors (to be chaired by a representative designated by AES) to review the Company's currently approved business plan and, upon the conclusion of such review, which shall be concluded within 30 days following the Closing Date, to make recommendations to the Investor Company's Board of Directors regarding the matter set forth in (C), and recommendations to the Company's Board of Directors regarding modifications to the business plan with respect to the matters set forth in (A), (B) and (D) through (G):
(A) the Company's current management stock option plan (with the intent that the Committee review and make recommendations with respect to aligning the interests of management more closely with those of the Company's shareholders);
(B) reporting requirements and procedures which will assist the Company in monitoring the progress of its network buildout, sales and installation;
(C) the search for and recommendation of a candidate to become the chief financial officer of the Company;
(D) clarification of the roles, responsibilities and the delegation of authority for the chief executive, financial, technical and information officers of the Company;
(E) the locations where the Company maintains business or other offices;
(F) the intercreditor agreement and consent to the transactions contemplated hereby and Company's status as a reporting entity under the Share Exchange Agreement each in federal securities laws and the situs of its incorporation; and
(G) a form reasonably acceptable schedule for the Company's Board of Directors meetings which will allow the Board of Directors to more closely monitor the Collateral AgentCompany's progress against the business plan.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms of the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days Promptly after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT)shall, for delivery subject to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor approval by the Company or any requisite vote of its Subsidiaries filed in shareholders, use reasonable commercial efforts to amend its Articles of Incorporation to (A) increase the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any maximum number of the Collateral members of its board of directors from 10 to 12, and (B) require that, prior to December 31, 2007, any new Equity Financing, as that term is defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the that certain Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in Shareholders Agreement among the Amended Company and Restated Primary Notes) or (y) certain of its shareholders dated of even date herewith, be accompanied with evidence that such Liens have been terminatedapproved by a minimum of 75% of the Company's directors.
(viii) On or During the period prior to the second (2nd) calendar day after amendment of the Stockholder Approval DateCompany's articles of incorporation as set forth in Section 5(b)(ii), the Company shall have filed an amended and restated Certificate not, without the approval of Incorporation with the Secretary holders of State at least 75% of Delaware effecting the Capital Increase (as defined below)Common Stock, engage in form and substance reasonably acceptable to the Collateral Agentany Equity Financing.
(viiv) On or prior to Within two (2) business days of the seventy-seventh (77th) calendar day after the Stockholder Approval DateClosing, pay all amounts represented by that certain promissory note delivered by the Company shall have filed an amended and restated Certificate in July, 2001 in favor of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent InstructionsXxxx, in the form approximate amount of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding US$1,810,538.78 as of a date within five days of the Closing DateSeptember 10, 2001.
Appears in 1 contract
Samples: Stock Purchase Agreement (Convergence Communications Inc)
Post-Closing Covenants. The Loan Parties shall deliver (ior shall cause to be delivered) On the following documents or prior shall complete (or shall cause to five be completed) the following tasks, as applicable, in each case no later than the dates specified below:
(5a) calendar days after The Loan Parties shall continue to take all preparatory steps as may be reasonably requested by the Closing DateAdministrative Agent to effect the implementation of the final Contingency Transition Plan, Fourth Third LLC shall have duly executed including taking all actions (by the timeframes specified therefor) as may be agreed to separately by the Lead Borrower and delivered the Administrative Agent as of the date hereof, in each case to the Investor and reasonable satisfaction of the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Administrative Agent.
(iib) On or prior to five Within two (52) calendar days after the Closing Date, (A) the Share Exchange shall have been consummated in accordance with the terms Business Days of the Share Exchange Agreement without any amendment, modification Twelfth Amendment Effective Date (or waiver thereof (except with the prior written consent of the Collateral Agent), (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) such later date as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investor.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Administrative Agent in its reasonable discretion), the Loan Parties shall have filed a Form S-1 Registration Statement, which shall be in form and substance acceptable to the Administrative Agent in its sole discretion (the “Form S-1”) with each applicable Governmental Authority (including the SEC) necessary for consummation of the transactions contemplated therein.
(c) The Loan Parties shall promptly (and in any event no later than one (1) Business Day) provide the Administrative Agent with copies of all notices and other communications between the Loan Parties and/or its advisors, on the one hand, and the SEC and/or any other Governmental Authority, on the other hand, related to the Form S-1 or any of the transactions contemplated therein.
(d) On or before May 3, 2024 (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Loan Parties shall provide the Administrative Agent with duly executed copies of shareholder support letters in support of the transactions contemplated by the Form S-1 from persons owning not less than twenty percent (20%) of the outstanding and issued voting Equity Interests of the Lead Borrower.
(e) On or before May 24, 2024 (or such later date as agreed to in writing by the Administrative Agent in its sole discretion), the Loan Parties shall have received all approvals from the SEC (including, for avoidance of doubt, SEC approval of the Form S-1, which shall have been rendered effective on or before such date) (the “SEC Approval Date”) and each other applicable Governmental Authority necessary to consummate the transactions contemplated by the Specified Refinancing Documents (as defined below) by no later than the Targeted Closing Date (as defined below) in accordance with the terms thereof (with such modifications as may be acceptable to the Administrative Agent and except the Lenders in their sole discretion) (such transactions, collectively, the “Specified Refinancing Transaction”).
(f) On or before the date that is twenty-five (25) days after the SEC Approval Date (or, if such date is not a Business Day, the next succeeding Business Day) (the “Targeted Closing Date”), the Loan Parties shall have consummated the Specified Refinancing Transaction. Notwithstanding anything to the contrary contained in the Amended Credit Agreement, the Loan Parties acknowledge and agree that (i) the failure to comply with respect this Section 4 within the times provided herein, (ii) the termination (or written assertion of the termination) of the Securities Purchase and Debt Conversion Agreement (as defined below) for any reason whatsoever prior to the consummation of the Specified Refinancing Transaction and/or (iii) the Requisite Stockholder Approval authorizing all Transaction Proposals (other than the Reverse Split Proposal unless the Investor fails to acknowledge in writing to the Company that it is willing to consummate all such other Transaction Proposals (other than the Reverse Split Proposal) within three (3) Business Days after such shareholder vote) contemplated under (and as all such terms are defined in) the Securities Purchase and Debt Conversion Agreement is not obtained at any Permitted Liens Special Meeting (as defined in the Amended Securities Purchase and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined belowDebt Conversion Agreement), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below)shall, in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have cases of clause (i) executed the Other Agreements), (ii) the Releases, and (iii) satisfied or waived all conditions above, constitute an immediate Event of Default under Section 8.01(b) of the Amended Credit Agreement. In consideration of the Loan Parties’ agreement to comply with each of the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled covenants set forth in exchange for Amended and Restated Primary Notes and, if applicablethis Section 4, the Series B Notes, identical to Administrative Agent and the Amended and Restated Primary Notes and, if applicable, Lenders agree that the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as covenants set forth in Section 4 of the Closing Date, Eleventh Amendment are hereby waived. This waiver shall be effective only in substantially this specific instance and for the form of Exhibit H attached heretospecific purposes for which it is given and shall not entitle the Loan Parties to any other or further or any similar waiver in any other circumstances.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
Post-Closing Covenants. The obligations of each party to consummate the transactions contemplated by this Agreement shall be also subject to using commercially reasonable efforts to fulfill, following Closing, each of the following covenants:
(a) Following closing, the parties will use best efforts to enter into an agreement with the landlord for the leased premises, providing for the settlement of outstanding amounts owing under the lease, and renegotiation and extension of the Lease, on terms satisfactory to the Purchaser.
(b) Until the issuance of the License all parties shall use best efforts to ensure that the board and management of AGB will be comprised of the following individuals:
(i) On or prior to five (5) calendar days after the Closing Date, Fourth Third LLC shall have duly executed and delivered to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.Xxxx Xxxxx - Director/ Senior Person In Charge;
(ii) On Xxx Xxxxx – Director / Responsible Person In Charge;
(iii) Xxxxx Xxxxx – Alternate Responsible Person In Charge;
(iv) Xxxxx Xxxxx – Alternate Responsible Person In Charge;
(v) Xxxxxxxx Xxxxx – Alternate Person In Charge;
(vi) Xxxx Xxxxx – Quality Assurance Person.
(c) Until such time as the License has been granted and RVT is able to appoint a majority of nominees to act as directors and officers of AGB, AGB shall not, without the prior written approval of RVT, proceed with or prior undertake any of the following matters:
(i) Entering into or acquisition of any business other than fulfilling the requirements for the grant of a License pursuant to five (5) calendar days the License Application or, after grant of the Closing DateLicense, (A) the Share Exchange shall have been consummated producing, possessing and selling cannabis, or cannabis products in accordance with the terms of the Share Exchange Agreement without License;
(ii) Appoint or terminate any amendmentperson as a senior officer or director of AGB, modification including any “senior person in charge”, any “responsible person in charge”, “any alternative person in charge” or waiver thereof (except with the prior written consent of the Collateral Agent)any “quality assurance person”, (B) PNG shall have appointed the individuals set forth on Table I of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) in each case as directors of PNG and the Company shall have duly executed and delivered to the Investor that certain Voting Agreement and Irrevocable Proxies those terms are defined in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall have been delivered to the InvestorACMPR, duly executed on behalf of PNG and registered in the name of the Investor.or any successor regulations;
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered Any change to the Collateral Agent (i) certificates representing the Companyfocus of AGB’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation business or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.operations;
(iv) On Any material changes for changes for construction plans or prior to five (5) calendar days after expenditures on the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.Leased Premises;
(v) On Any termination or prior amendment to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.Lease;
(vi) On Any dissolution or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate winding up of Incorporation with the Secretary AGB or distribution or sale of State any of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.AGB’s assets;
(vii) On The issuance of any common shares, preferred shares or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).convertible securities;
(viii) On or prior Any amendment to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions constating documents of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.AGB;
(ix) On Any merger, consolidation or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy amalgamation of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.AGB with any other entity; AGB or RVT;
(x) On The formation of any subsidiary;
(xi) Commencement of any construction on the Leased Premises;
(xii) Entering into any agreement with any affiliate or prior to related party of
(xiii) Payment of any commission or bonus;
(xiv) Any expenditure in excess of $5,000;
(xv) Incurring any debt or encumbering AGB’s assets, excluding trade debt incurred in the fifth normal course of operations not exceeding $5,000; or
(5thxvi) calendar day after the date hereofCommencement or defense of any litigation, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Datearbitration or proceeding; or approval.
Appears in 1 contract
Samples: Share Purchase Agreement
Post-Closing Covenants. (i) On With respect to (A) any newly-acquired Unencumbered Parcel with a gross book value in excess of $3,000,000, or prior (B) any Unencumbered Parcel owned by any Obligor as of the Closing Date in which any such Obligor has invested such that the gross book value of the land and any buildings thereon after the investment is completed is greater than $3,000,000, the Obligors shall deliver to five the Agent, within 45 days after the closing of any such acquisition in clause (A) above or of any such investment in clause (B) above with respect to such property, the following, each dated such day (unless otherwise specified) in form and substance satisfactory to the Agent: deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in form reasonably satisfactory to the Agent (together with the Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 5.01(j), in each case as amended, the “Mortgages”), duly executed by the appropriate Obligor, together with:
(1) evidence that counterparts of the Mortgages have been duly recorded in all filing or recording offices that the Agent may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties having the priority contemplated by the Intercreditor and Subordination Agreements and that all filing and recording taxes and fees have been paid,
(2) fully paid American Land Title Association Lender’s Extended Coverage mortgagee title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amount reasonably acceptable to the Collateral Agent, issued, coinsured and reinsured by title insurers acceptable to the Collateral Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances and Liens having the priority contemplated by the Intercreditor and Subordination Agreements, and providing for such other affirmative insurance (including endorsements for mechanics’ and materialmen’s Liens) and such coinsurance and direct access reinsurance as the Collateral Agent may reasonably deem necessary or desirable,
(3) American Land Title Association form surveys, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Collateral Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Collateral Agent,
(4) the Assignments of Leases and Rents referred to in the Mortgages, duly executed by the appropriate Obligor,
(5) calendar such consents and agreements of lessors and other third parties, and such estoppel letters and other confirmations, as the Agent may reasonably deem necessary or desirable,
(6) evidence of the insurance required by the terms of the Mortgages, and
(7) evidence that all other action that the Agent may deem reasonably necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken.
(ii) With respect to (A) any newly-acquired Unencumbered Parcel with a gross book value in excess of $1,000,000 but less than $3,000,000, or (B) any Unencumbered Parcel owned by any Obligor as of the Closing Date in which any such Obligor has invested such that the gross book value of the land and any buildings thereon after the investment is completed is in excess of $1,000,000 but less than $3,000,000, the Obligors shall deliver to the Agent, within 45 days after the closing of any such acquisition in clause (A) above or of any such investment in clause (B) above with respect to such property, the following, each dated such day (unless otherwise specified) in form and substance satisfactory to the Agent: deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust in form reasonably satisfactory to the Agent, together with evidence that counterparts of any such mortgages have been duly recorded in all filing or recording offices that the Agent may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties and that all filing and recording taxes and fees have been paid.
(iii) With respect to the Davidson County switch property located at 000 Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000, the Obligors shall deliver to the Agent, within 30 days after the Closing Date, Fourth Third LLC shall have duly executed deeds of trust, trust deeds, mortgages, leasehold mortgages and delivered leasehold deeds of trust, as applicable, in form reasonably satisfactory to the Investor and the Company the intercreditor agreement and consent to the transactions contemplated hereby and under the Share Exchange Agreement each in a form reasonably acceptable to the Collateral Agent.
(ii) On or prior to five (5) calendar days after the Closing Date, (A) the Share Exchange shall together with evidence that counterparts of such mortgage have been consummated duly recorded in accordance with all filing or recording offices that the terms of Agent may reasonably deem necessary or desirable in order to create a valid first and subsisting Lien on the Share Exchange Agreement without any amendment, modification or waiver thereof (except with the prior written consent property described therein in favor of the Collateral Agent), (B) PNG shall have appointed Agent for the individuals set forth on Table I benefit of Schedule 1(h)(iii) to the offices set forth opposite their names on Table I of Schedule 1(h)(iii) attached hereto, (C) PNG shall have appointed the individuals set forth on Table II of Schedule 1(h)(iii) as directors of PNG Secured Parties and the Company shall have duly executed that all filing and delivered to the Investor that certain Voting Agreement recording taxes and Irrevocable Proxies in the form attached hereto as Exhibit G and (D) the Investor PNG Note shall fees have been delivered to the Investor, duly executed on behalf of PNG and registered in the name of the Investorpaid.
(iii) On or prior to five (5) calendar days after the Closing Date, in accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (i) certificates representing the Company’s Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated capital stock, along with duly executed blank stock powers and (ii) appropriate financing statements on Form UCC-I to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by each Security Document.
(iv) On or prior to five (5) calendar days after the Closing Date, the Company shall have ordered from a nationally recognized lien search firm (such as CT), for delivery to the Investor, true copies of UCC search results, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries filed in the prior five years to perfect an interest in any assets thereof, together with copies of such financing statements, none of which, except for Permitted Liens and as otherwise agreed in writing by the Investor, shall cover any of the Collateral (as defined in the Security Documents) and the results of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and except with respect to any Permitted Liens (as defined in the Amended and Restated Primary Notes) shall either (x) not show any such Liens (as defined in the Amended and Restated Primary Notes) or (y) be accompanied with evidence that such Liens have been terminated.
(v) On or prior to the second (2nd) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Capital Increase (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vi) On or prior to the seventy-seventh (77th) calendar day after the Stockholder Approval Date, the Company shall have filed an amended and restated Certificate of Incorporation with the Secretary of State of Delaware effecting the Reverse Stock Split (as defined below), in form and substance reasonably acceptable to the Collateral Agent.
(vii) On or prior to the fifth (5th) calendar day after the date hereof, each of the Other Investors and the Company shall have (i) executed the Other Agreements, (ii) the Releases, (iii) satisfied or waived all conditions to the closings contemplated by such agreements and (iv) caused their Existing Initial Bridge Warrants, if any, Existing Second Bridge Warrants, if any, Existing Primary Notes, Existing Primary Series A Warrants and Existing Primary Series B Warrants to be cancelled in exchange for Amended and Restated Primary Notes and, if applicable, the Series B Notes, identical to the Amended and Restated Primary Notes and, if applicable, the Series B Notes to be issued to the Investor hereunder (other than the Proportionate Changes).
(viii) On or prior to the fifth (5th) calendar day after the date hereof, the Investor shall have received the opinions of Sichenzia Rxxx Xxxxxxxx Xxxxxxx LLP, the Company's outside counsel, dated as of the Closing Date, in substantially the form of Exhibit H attached hereto.
(ix) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit L attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.
(x) On or prior to the fifth (5th) calendar day after the date hereof, the Company shall have delivered to the Investor a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Closing Date.
Appears in 1 contract
