Conditions for Closing. 3.1 The obligations of the Buyers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or waiver by the Buyers (in their sole discretion) in writing of the following conditions precedent (the “Conditions”) prior to the Closing: (a) each of the Warranties made by the Sellers in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date; (b) each of the Sellers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by each of the Sellers prior to the Closing; (c) there shall be no proceedings pending, or threatened, against any of the Buyers, the Sellers or the Company arising out of or in connection with this Agreement or its subject matter (including, without limitation, its validity, formation at issue, effect, interpretation, performance or termination); (d) all authorization and consents of any governmental authority, and any permits in connection with the Closing as contemplated under this Agreement, shall have been duly obtained and effective as of the Closing Date; including but not limited to the completion of the following: (i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and (ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AIC. (e) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this Agreement; (f) the delivery of necessary documents for the Closing, including but not limited to the copies of the documents listed under Articles 3.1, Article 6.2.1 and the duly executed Agreement; (g) the due execution of a joint venture contract (the “JV Contract”) between the Seller and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and an agreed articles of association (the “AOA”) of the Company substantially in the form and substance of Schedule 4 attached hereto; (h) there has not occurred between the date of this Agreement and the Closing Date any Event that has a Material Adverse Effect; (i) the Company has duly obtained certain certificates, approvals and registrations as listed in Schedule 5, on terms acceptable and to the satisfaction of the Buyers (the “Specific Permits”); (j) the due execution and delivery of a capital increase agreement (the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially in the form and substance as listed in Schedule 6, including the completion of the related registration of such capital increase by providing a copy of the approval letter issued by the relevant authorities; (k) a board resolution of the Joint Venture Company approving the capital increase under the Capital Increase Agreement and the execution of the Capital Increase Agreement; (l) a consent letter from Qingdao branch of Bank of Communication (the “Lender”) in a form and substance as listed in Schedule 7, which provides consent to the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015; (m) official letters from the local environmental, market supervisory and land use right authorities, in a form and substance as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation; (n) a written confirmation with the supporting documents from Seller that the transactions contemplated in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., the MOC, to the satisfaction of the Buyers as listed in Schedule 9; (o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); and (p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017). 3.2 The obligations of each of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) of such of the following conditions precedent prior to the Closing: (a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date; (b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing; (c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of or in connection with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and (d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreement.
Appears in 2 contracts
Sources: Agreement for Transfer of Equity Interests, Agreement for Transfer of Equity Interests (Cooper Tire & Rubber Co)
Conditions for Closing. 3.1 The obligations of Lender shall not be obligated to disburse the Buyers to consummate Bridge Loan until the transactions contemplated by this Agreement Borrower shall be subject have fulfilled and/or furnished to the fulfillmentLender, or waiver by at the Buyers (in their sole discretion) in writing of Borrower’s own cost and expense, the following conditions precedent (the “Conditions”) prior to the Closing:unless waived in writing by Lender):
(a) each of the Warranties made The Loan Documents duly executed by the Sellers in this Agreement Borrower and each Guarantor (as applicable) along with evidence that all financing statements and other filings contemplated thereby have been made and the Security Documents to be placed of record or filed shall be true have been duly executed and correct recorded and filed in all respects as of appropriate offices and shall constitute a first and prior Lien on the date Collateral, subject only to those matters set forth in Section 6.01 of this Agreement and all taxes, fees and charges in connection therewith shall have been paid.
(b) Evidence, in form and substance satisfactory to the Lender, that the Aircraft, business and all assets of the Borrower are adequately insured as required by Section 5.04.
(c) Payment of the Origination Fee and all reimbursable costs and expenses pursuant to the Loan Documents, together with evidence of payment to other parties of all fees and costs which Borrower is required under the Loan Documents to pay by the Closing Date.
(d) Lien searches (including Uniform Commercial Code, judgments, bankruptcy and taxes) with respect to the Borrower and each Guarantor (at the state and county level) from the jurisdiction of its organization and each other jurisdiction in which it maintains an office, including the home airport of the Aircraft, (i) showing no existing Liens on the Collateral pledged by such Persons except as permitted hereunder or (ii) accompanied by necessary termination statements, release statements and any other types of release in connection with any impermissible Liens disclosed by such searches that have been filed or for which satisfactory arrangements have been made for such filing on the Closing Date.
(e) With respect to the Aircraft, (i) an FAA and International Registry lien and title search acceptable to the Lender, (ii) a copy of Aircraft Registration Certificate, (iii) lien and title searches of the applicable Canadian government authorities, including without limitation under the Personal Property Security Act, in form acceptable to the Lender, (iv) evidence that the Borrower has become a Transaction User Entity (as defined in the International Registry) and appointed an administrator and a professional registry user entity, in form and substance satisfactory to the Lender, (v) reasonable evidence that the Aircraft is eligible for prompt issuance of a U.S. Certificate of Airworthiness following the Aircraft’s transfer of title to Borrower, (vi) Completed Customs and Border Protection Forms 7501 and 3461 evidencing importation into the U.S., and (vii) a copy of the airframe, engine, and avionics maintenance programs.
(f) Copies of all of the Aircraft Contracts in effect as of the Closing Date, in form and substance reasonably acceptable to the Lender.
(g) A copy of the Borrower’s and each Guarantor’s organizational documents, in form and substance satisfactory to the Lender.
(h) A certificate of existence, authorization, good standing certificate, or its equivalent of each of the Borrower and the Guarantor from the Secretary of State of such Person’s jurisdiction of incorporation/formation/organization and the Secretary of State of each other jurisdiction in which such Person is qualified to do business as a foreign corporation/company/partnership, if any.
(i) A certificate in form and substance satisfactory to Lender from the Borrower and each Guarantor, dated the Closing Date and signed on behalf of such Person by an authorized member/manager/officer of such Person certifying as if made to (i) true copies of the organizational documents of such Person and any amendments thereto, (ii) the resolutions of the directors/managers and/or shareholders/members (as the case may be) of such Person authorizing the execution and delivery of this Agreement and the other Loan Documents to which it is a party and (iii) the names, true signatures and incumbency of the members/managers/officers of such Person authorized to execute and deliver the Loan Documents to which it is a party. The Lender may conclusively rely on such certification unless and until a later certificate revising the prior certificate has been furnished to the Lender.
(j) A certification regarding the beneficial ownership of the Borrower, as required by the Bank Secrecy Act (31 C.F.R. §1010.230 et. seq.), as amended from time to time, the regulations promulgated thereunder, and any successor statute, in form and substance satisfactory to the Lender.
(k) Evidence, in form and substance acceptable to the Lender, that the Borrower has a tangible balance sheet equity of at least twenty percent (20%) on the Closing Date;.
(bl) each An opinion of counsel on behalf of the Sellers Borrower and the Guarantor, dated the Closing Date, in form and substance satisfactory to the Lender in absolute discretion.
(m) An opinion of special FAA counsel, including an International Registry Priority Search Certificate, each dated the Closing Date, in form and substance satisfactory to the Lender in absolute discretion.
(n) Listing of furniture, fixtures and equipment owned by the Borrower or a certification that the Borrower does not own any, satisfactory in form and content to the Lender, indicating that the estimated value of such furniture, fixtures and equipment.
(o) An inventory of all Warranties (including copies all documentation with respect thereto) relating to the Aircraft.
(p) The Borrower shall have performed or complied with executed and delivered all agreementsforms, obligations documentation and covenants contained in this Agreement that are required to be performed or complied with by each information necessary for the establishment of the Sellers Cash Collateral Account at Lender, and shall have funded the Cash Collateral into the Cash Collateral Account (either prior to the Closing;Closing Date or contemporaneously therewith).
(cq) there shall Such other instruments, documents, certificates, assurances and opinions as may be no proceedings pending, or threatened, against any of set forth in the Buyers, preliminary closing checklist delivered to the Sellers or the Company arising out of or Borrower in connection with this Agreement or its subject matter (includingas the Lender shall reasonably require to evidence and secure the Loan, without limitation, its validity, formation at issue, effect, interpretation, performance or termination);
(d) all authorization and consents of any governmental authority, and any permits in connection to comply with the Closing as contemplated under provisions hereof and the requirements of regulatory authorities to which the Lender is subject, all of which, including those referred to above in this AgreementSection 4.01 shall be satisfactory in form, shall have been duly obtained content and effective as of the Closing Date; including but not limited substance to the completion of the following:
(i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and
(ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AICLender.
(e) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this Agreement;
(f) the delivery of necessary documents for the Closing, including but not limited to the copies of the documents listed under Articles 3.1, Article
6.2.1 and the duly executed Agreement;
(g) the due execution of a joint venture contract (the “JV Contract”) between the Seller and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and an agreed articles of association (the “AOA”) of the Company substantially in the form and substance of Schedule 4 attached hereto;
(h) there has not occurred between the date of this Agreement and the Closing Date any Event that has a Material Adverse Effect;
(i) the Company has duly obtained certain certificates, approvals and registrations as listed in Schedule 5, on terms acceptable and to the satisfaction of the Buyers (the “Specific Permits”);
(j) the due execution and delivery of a capital increase agreement (the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially in the form and substance as listed in Schedule 6, including the completion of the related registration of such capital increase by providing a copy of the approval letter issued by the relevant authorities;
(k) a board resolution of the Joint Venture Company approving the capital increase under the Capital Increase Agreement and the execution of the Capital Increase Agreement;
(l) a consent letter from Qingdao branch of Bank of Communication (the “Lender”) in a form and substance as listed in Schedule 7, which provides consent to the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015;
(m) official letters from the local environmental, market supervisory and land use right authorities, in a form and substance as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation;
(n) a written confirmation with the supporting documents from Seller that the transactions contemplated in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., the MOC, to the satisfaction of the Buyers as listed in Schedule 9;
(o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); and
(p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017).
3.2 The obligations of each of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) of such of the following conditions precedent prior to the Closing:
(a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date;
(b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of or in connection with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and
(d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreement.
Appears in 2 contracts
Sources: Loan Agreement (Wildfire New PubCo, Inc.), Loan Agreement (Wildfire New PubCo, Inc.)
Conditions for Closing. 3.1 The obligations of the Buyers to consummate the transactions contemplated by this Agreement following conditions shall be subject to the fulfillment, or waiver satisfied by the Buyers (in their sole discretion) in writing of Borrower on the following conditions precedent (the “Conditions”) prior to the Closing:Closing Date Drawdown;
(a) this Agreement, each of the Warranties made other Loan Documents and confirmations of the continuing validity of the Security, each in form and on terms satisfactory to the Lender, acting reasonably, shall have been duly authorized, executed and delivered to the Lender by the Sellers Borrower and the Guarantors which are parties thereto and shall constitute legal, valid and binding obligations of the Borrower and the Guarantors which are parties thereto;
(b) the Borrower and each of the Guarantors shall have delivered to the Lender certified copies of its constating documents and borrowing by-laws or confirmation that there have been no amendments or modifications to such documents since December 31, 2002, the resolution authorizing the Loan Documents and the incumbency of officers signing the Loan Documents and any documents to be provided pursuant to the provisions hereof or thereof and a certificate of compliance, good standing or like certificate with respect to the Borrower and each Guarantor issued by appropriate government officials of its governing jurisdiction;
(c) the representations and warranties set forth in this Agreement Section 7.1 shall be true and correct in all material respects as of the date of this Agreement on and as of the Closing Date as if made by reference to the facts and circumstances then existing and the Borrower shall have delivered an Officer’s Certificate to such effect or, in the event of a Drawdown on the Closing Date;
(b) each of the Sellers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by each of the Sellers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against any of the Buyers, the Sellers or the Company arising out of or in connection with this Agreement or its subject matter (including, without limitation, its validity, formation at issue, effect, interpretation, performance or termination)a Drawdown Notice;
(d) all authorization and consents no Default or Event of any governmental authority, and any permits in connection with the Closing as contemplated under this Agreement, Default shall have been duly obtained occurred and effective as be continuing and the Borrower shall have delivered an Officer’s Certificate to such effect or, in the event of a Drawdown on the Closing Date; including but not limited to the completion of the following:
(i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and
(ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AIC., a Drawdown Notice;
(e) no governmental authority of competent jurisdiction Material Adverse Change shall have enactedoccurred since December 31, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect 2003 and (ii) has the effect of making the transfer Borrower shall have delivered an Officer’s Certificate executed by its Chief Financial Officer of the Acquired Equity Interests Borrower to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this Agreementsuch effect;
(f) the delivery opinions of necessary documents for the Closing, including but not limited Counsel to the copies Borrower and counsel to each of the documents listed under Articles 3.1Guarantors addressed to the Lender in form and substance satisfactory to the Lender, Article
6.2.1 and shall have been delivered to the duly executed AgreementLender;
(g) the due execution of a joint venture contract (the “JV Contract”) between the Seller and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and an agreed articles of association (the “AOA”) none of the Company substantially in undertaking, property or assets of the form and substance of Schedule 4 attached heretoBorrower shall be subject to any Charge other than a Permitted Charge;
(h) there has not occurred between the date Lender shall have received copies of this Agreement the Borrower’s (i) most recent interim financial statements; (ii) accounts receivable listing; (iii) accounts payable listing; (iv) inventory listing; and (v) the Closing Date any Event that has a Material Adverse Effectannual and quarterly projections (including balance sheet, income statement, cash flow statement and certificate to be executed by the Borrower’s Chief Financial Officer setting out the Borrower’s computation as of March 31, 2004 of the financial covenants set forth in Section 8.3) for the 2004 year taking into account the revised financing structure;
(i) the Company has duly Lender shall be satisfied, acting reasonably, that all material Authorizations required in connection with the transactions contemplated hereby have been obtained certain certificatesand are in full force and effect and that all consents and waivers required to consummate such transactions have been obtained, approvals and registrations as listed in Schedule 5, on terms acceptable and to the satisfaction extent that consummation of such transactions would otherwise be restricted or prohibited under the Buyers (terms of any Material Agreement to which any Obligor is a party, or by which it is bound, in each case without the “Specific Permits”)imposition of any burdensome provisions;
(j) the due execution and delivery Lender shall have received confirmation of a capital increase agreement (satisfactory policies of insurance in place for the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially in the form and substance as listed in Schedule 6, including the completion benefit of the related registration of such capital increase by providing a copy of Borrower and each Guarantor, with the approval letter issued by the relevant authoritiesLender endorsed thereon as loss payee;
(k) a board resolution of the Joint Venture Company approving Lender shall have received satisfactory confirmation that all equity owned by SGF Santé Inc. in DPI has been purchased by the capital increase under the Capital Increase Agreement Borrower and the execution of the Capital Increase Agreementthat all debt owed by DPI to SGF Santé Inc. and Investissement Québec have been repaid in full and all security related to such debts have been discharged;
(l) a consent letter from Qingdao branch of Bank of Communication (all fees and other amounts then payable under the “Lender”) Loan Documents shall have been paid in a form and substance as listed in Schedule 7, which provides consent to the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015;full; and
(m) official letters from the local environmentalLender shall have received such other documents, market supervisory security, waivers, consents, undertakings and land use right authorities, in a form and substance acknowledgements as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation;
(n) a written confirmation with the supporting documents from Seller that the transactions contemplated Lender may reasonably request. The conditions set forth in this Agreement does not require any approval from Section 6.1 are inserted for the Chinese Antitrust authority, i.e., the MOC, to the satisfaction sole benefit of the Buyers as listed Lender and may be waived by Lender in Schedule 9;
(o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); and
(p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017).
3.2 The obligations of each of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) of such of the following conditions precedent prior to the Closing:
(a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date;
(b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of whole or in connection part, with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance without terms or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and
(d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreementconditions.
Appears in 1 contract
Conditions for Closing. 3.1 The obligations of the Buyers to consummate the transactions contemplated by this Agreement following conditions shall be subject to the fulfillment, or waiver satisfied by the Buyers (in Borrowers contemporaneously with their sole discretion) in writing execution and delivery of the following conditions precedent (the “Conditions”) prior to the Closingthis Agreement:
(a) each Borrower shall have duly authorized, executed and delivered to the Administrative Agent each of the Warranties made by the Sellers Loan Documents to which it is a party and which is required to be delivered pursuant to this Agreement, and each such Loan Document shall constitute a legal, valid and binding obligation of such Borrower, enforceable against such Borrower in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Dateaccordance with its terms;
(b) each Borrower shall have delivered to the Administrative Agent:
(i) a certified copy of its Organic Documents;
(ii) a certified copy of the Sellers shall have performed resolutions authorizing it to enter into, execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder;
(iii) a certificate as to the incumbency of its officers signing the Loan Documents to which it is a party; and
(iv) a certificate of status, good standing or complied like certificate with all agreements, obligations and covenants contained in this Agreement that are required respect to be performed or complied with such Borrower issued by each the appropriate government officials of the Sellers prior to the Closingjurisdiction of its incorporation;
(c) there shall be have been no proceedings pendingMaterial Adverse Change since September 30, or threatened, against any of the Buyers, the Sellers or the Company arising out of or in connection with this Agreement or its subject matter (including, without limitation, its validity, formation at issue, effect, interpretation, performance or termination)2003;
(d) all authorization no Default or Event of Default shall have occurred and consents be continuing;
(e) opinions of any governmental authorityBorrowers' Counsel, in form and any permits in connection with substance satisfactory to the Closing as contemplated under this AgreementLenders' counsel and the Administrative Agent, acting reasonably, shall have been duly obtained and effective as of the Closing Date; including but not limited delivered to the completion of the following:
(i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and
(ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AIC.
(e) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this AgreementAdministrative Agent;
(f) the delivery of necessary documents for the Closing, including but not limited Borrowers shall have paid all fees and expenses that are due to the copies of Administrative Agent or the documents listed under Articles 3.1, Article
6.2.1 Lenders and related to the duly executed Facility and this Agreement;; and
(g) Celestica, on behalf of itself and International, shall pay to the due execution of a joint venture contract (Administrative Agent for the “JV Contract”) between the Seller and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and an agreed articles of association (the “AOA”) account of the Company substantially in the form and substance of Schedule 4 attached hereto;
(h) there has not occurred between the date of Lenders who have consented to this Agreement and the Closing Date any Event that has a Material Adverse Effect;
(i) the Company has duly obtained certain certificates, approvals and registrations as listed in Schedule 5, on terms acceptable and to the satisfaction an amendment fee of the Buyers (the “Specific Permits”);
(j) the due execution and delivery of a capital increase agreement (the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially in the form and substance as listed in Schedule 6, including the completion of the related registration of such capital increase by providing a copy of the approval letter issued by the relevant authorities;
(k) a board resolution of the Joint Venture Company approving the capital increase under the Capital Increase Agreement and the execution of the Capital Increase Agreement;
(l) a consent letter from Qingdao branch of Bank of Communication (the “Lender”) in a form and substance as listed in Schedule 7, which provides consent to the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015;
(m) official letters from the local environmental, market supervisory and land use right authorities, in a form and substance as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation;
(n) a written confirmation with the supporting documents from Seller that the transactions contemplated in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., the MOC, to the satisfaction of the Buyers as listed in Schedule 9;
(o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); and
(p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017).
3.2 The obligations of each of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) of such of the following conditions precedent prior to the Closing:
(a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made 10 basis points on the Closing Date;
(b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of or in connection with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and
(d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreementaggregate Commitments.
Appears in 1 contract
Conditions for Closing. 3.1 The obligations of the Buyers to consummate the transactions contemplated by this Agreement following conditions shall be subject to the fulfillment, or waiver satisfied by the Buyers (in their sole discretion) in writing of Borrower on the following conditions precedent (the “Conditions”) prior to the ClosingClosing Date:
(a) this Agreement and the Borrower's Security Documents, in form and on terms satisfactory to the Lenders, acting reasonably, shall have been duly authorized, executed and delivered to the Administrative Agent by the Borrower and shall constitute legal, valid and binding obligations of the Borrower;
(b) the Guarantees and the Guarantors' Security Documents, in form and on terms satisfactory to the Lenders, acting reasonably, shall have been duly authorized, executed and delivered by the Guarantors party thereto to the Administrative Agent and shall constitute legal, valid and binding obligations of the Guarantors party thereto;
(c) the Borrower shall have delivered to the Administrative Agent certified copies of its constating documents and by-laws, all as amended to date, the resolution authorizing this Agreement and the Borrower's Security Documents and the incumbency of officers signing this Agreement and the Borrower's Security Documents and any documents to be provided pursuant to the provisions hereof or thereof and a certificate of compliance, good standing or like certificate with respect to the Borrower issued by appropriate government officials of the jurisdiction of its incorporation;
(d) each of the Warranties made Guarantors shall have delivered to the Administrative Agent certified copies of its certificate of incorporation and by-laws, all as amended to date, the resolution authorizing the Guarantees and the Guarantors' Security Documents to which such Guarantor is a party and the incumbency of officers signing the Guarantee and the Guarantors' Security Documents to which such Guarantor is a party and any documents to be provided pursuant to the provisions hereof or thereof and a certificate of status, good standing or like certificate with respect to such Guarantor issued by appropriate government officials of the Sellers jurisdiction of its incorporation (except for the certificate of the Registrar of Companies of England and Wales in respect of MNL, which shall be delivered on a date occurring not more than 15 Banking Days following the Closing Date);
(e) each of the Guarantors shall have delivered to the Administrative Agent such consent or acknowledgement regarding the continuation of the security and applicability of the Guarantor's Security Documents to which it is a party, and the Security granted thereunder, to the obligations of the Borrower under this Agreement notwithstanding the amendment to the terms of the Existing Credit Agreement in form and on terms satisfactory to the Lenders, acting reasonably;
(f) the representations and warranties set forth in Section 7.1 shall be true and correct in all material respects as of the date of this Agreement on and as of the Closing Date as if made on by reference to the Closing Date;
(b) each of facts and circumstances then existing and the Sellers Borrower shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required delivered an Officer's Certificate to be performed or complied with by each of the Sellers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against any of the Buyers, the Sellers or the Company arising out of or in connection with this Agreement or its subject matter (including, without limitation, its validity, formation at issue, such effect, interpretation, performance or termination);
(d) all authorization and consents of any governmental authority, and any permits in connection with the Closing as contemplated under this Agreement, shall have been duly obtained and effective as of the Closing Date; including but not limited to the completion of the following:
(i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and
(ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AIC.
(e) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this Agreement;
(f) the delivery of necessary documents for the Closing, including but not limited to the copies of the documents listed under Articles 3.1, Article
6.2.1 and the duly executed Agreement;
(g) the due execution no Default or Event of a joint venture contract (the “JV Contract”) between the Seller Default shall have occurred and be continuing and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and Borrower shall have delivered an agreed articles of association (the “AOA”) of the Company substantially in the form and substance of Schedule 4 attached heretoOfficer's Certificate to such effect;
(h) there has not occurred between the date Security and all necessary financing change statements shall have been duly registered, filed and recorded in all jurisdictions where such registration, filing or recording, in the opinion of this Agreement the Lenders, is necessary or advantageous to preserve, protect and perfect the Closing Date any Event that has a Material Adverse Effectcharges and security interest created or intended to be created by the Security Documents;
(i) the Company has duly obtained certain certificates, approvals and registrations as listed in Schedule 5, on terms acceptable and Borrower shall have delivered to the satisfaction Administrative Agent evidence of a policy of insurance by EDC in favour of the Buyers (Borrower in form and substance satisfactory to the “Specific Permits”)Lenders and an acknowledgement by EDC of the direction to pay delivered by the Borrower as part of the Borrower's Security Documents;
(j) the due execution Borrower shall have delivered to the Administrative Agent satisfactory evidence that customary insurance coverage (with adequate and delivery customary limits and deductibles) for business and operations of a capital increase agreement (the “Capital Increase Agreement”) between Yiyuan type and size of the Borrower and the Buyers substantially Guarantors is in place, with (i) the form Administrative Agent being named as first loss payee mortgagee (together with the standard mortgage clause from the Insurance Bureau of Canada) and substance as listed in Schedule 6, including the completion each of the related registration of such capital increase by providing a copy of Lenders being named as additional insureds and (ii) an endorsement that 30 days notice shall be provided to the approval letter issued by the relevant authoritiesAdministrative Agent for any cancellation, modification or waiver thereunder;
(k) a board resolution of all fees and expenses payable in connection with the Joint Venture Company approving transactions contemplated hereby shall be paid in full, to the capital increase under the Capital Increase Agreement extent that such fees and the execution of the Capital Increase Agreementexpenses shall then be due and payable;
(l) a consent letter opinions of Counsel to the Borrower and counsel to the Guarantors, addressed to the Administrative Agent and the Lenders from Qingdao branch of Bank of Communication (the “Lender”) time to time party hereto, in a form and substance as listed in Schedule 7satisfactory to the Administrative Agent and each Lender, shall have been delivered to the Administrative Agent (except (i) for the opinion of counsel to MNI and MNSI, which provides consent shall be delivered on a date occurring not more than 5 Banking Days following the Closing Date and (ii) for the opinion of counsel to MNL, which shall be delivered on a date occurring not more than 15 Banking Days following the Closing Date);
(m) there shall have been no material adverse change in the assets, liabilities, business, operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries, considered as a whole, which has occurred since January 25, 2004, the end of the Borrower's third quarter of its 2004 fiscal year;
(n) on or prior to the Company for Closing Date, all amounts owing by MNL under the EDC Facility shall have been fully repaid and such EDC Facility and the Intercreditor Agreement shall have been terminated and cancelled and shall cease to be of any further force and effect;
(o) the Borrower shall have delivered to the Administrative Agent an acknowledgement and acceptance to the Fee Letter; and
(p) the Administrative Agent shall have received such additional evidence, documents or undertakings as the Lenders may reasonably request to establish the consummation of the transactions contemplated under hereby. In each case where a document shall be delivered to the Administrative Agent, the Borrower shall provide a sufficient number of copies for delivery of an originally executed copy of each document to each Lender. The conditions set forth in this Agreement in accordance with Section 6.1 are inserted for the loan agreements between the sole benefit of each Lender and the Company dated October 28, 2014 and January 20, 2015;
(m) official letters from the local environmental, market supervisory and land use right authorities, in a form and substance as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation;
(n) a written confirmation with the supporting documents from Seller that the transactions contemplated in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., the MOC, to the satisfaction of the Buyers as listed in Schedule 9;
(o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); and
(p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017).
3.2 The obligations of each of the Sellers to consummate the transactions contemplated by this Agreement shall may be subject to the fulfillment, or written waiver waived by each of the Sellers (Lender in its sole discretion) of such of the following conditions precedent prior to the Closing:
(a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date;
(b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of whole or in connection part, with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance without terms or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and
(d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreementconditions.
Appears in 1 contract
Conditions for Closing. 3.1 The obligations of the Buyers to consummate the transactions contemplated by this Agreement following conditions shall be subject to the fulfillment, or waiver satisfied by the Buyers (in their sole discretion) in writing of the following conditions precedent (the “Conditions”) Borrowers on or prior to the Closing:
(a) each Obligor shall have duly authorized, executed and delivered to the Administrative Agent each of the Warranties made by the Sellers Loan Documents to which it is a party and each such Loan Document shall constitute a legal, valid and binding obligation of such Obligor, enforceable against such Obligor in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Dateaccordance with its terms;
(b) each Obligor shall have delivered to the Administrative Agent:
(i) a certified copy of its Organic Documents,
(ii) a certified copy of the Sellers shall have performed resolutions authorizing it to enter into, execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder;
(iii) a certificate as to the incumbency of its officers signing the Loan Documents to which it is a party; and
(iv) a certificate of status, good standing or complied like certificate with all agreements, obligations and covenants contained in this Agreement that are required respect to be performed or complied with such Obligor issued by each the appropriate government officials of the Sellers prior to the Closingjurisdiction of its incorporation;
(c) there shall be have been no proceedings pendingMaterial Adverse Change since September 30, or threatened, against any of the Buyers, the Sellers or the Company arising out of or in connection with this Agreement or its subject matter (including, without limitation, its validity, formation at issue, effect, interpretation, performance or termination)2002;
(d) all authorization no Default or Event of Default shall have occurred and consents be continuing;
(e) each Material Restricted Subsidiary shall have executed and delivered to the Administrative Agent (i) a confirmation of any governmental authority, and any permits its Guarantee if previously provided in connection with the Closing as contemplated under this Existing Credit Agreement, shall have been duly obtained and effective as of the Closing Date; including but not limited to the completion of the following:
(i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and
or (ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AIC.
(e) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this Agreementa Guarantee;
(f) the delivery of necessary documents for the Closing, including but not limited Celestica shall have executed and delivered to the copies Administrative Agent a Guarantee of the documents listed under Articles 3.1, Article
6.2.1 and the duly executed Agreementmonetary Obligations of Celestica International;
(g) the due execution opinions of a joint venture contract (the “JV Contract”) between the Seller Borrowers' Counsel, and the Buyers local counsel to each Guarantor, substantially in the form and substance of Schedule 3 attached hereto; and an agreed articles of association (K, shall have been delivered to the “AOA”) of the Company substantially in the form and substance of Schedule 4 attached heretoAdministrative Agent;
(h) there has not occurred between none of the date undertaking, property or assets of this Agreement the Borrowers or any of the Restricted Subsidiaries shall be subject to any Liens other than (i) Permitted Encumbrances or (ii) Liens with respect to which the Administrative Agent shall have received satisfactory evidence of the repayment of the underlying obligation and fully executed discharges and releases thereof and Celestica and each of the Closing Date Restricted Subsidiaries shall have delivered to the Administrative Agent a -43- Permitted Encumbrance Certificate if any Event that has a Material Adverse Effect;of the undertaking, property or assets of such Restricted Subsidiary is subject to any Liens; and
(i) all amounts owing by the Company has duly obtained certain certificates, approvals and registrations as listed in Schedule 5, on terms acceptable and Borrowers to the satisfaction Lenders and the Agents under the Senior Unsecured Credit Agreement shall have been fully repaid and such Senior Unsecured Credit Facility shall have been terminated and cancelled and shall cease to be of any further force and effect. The conditions set forth in this Section 4.1 are inserted for the sole benefit of the Buyers (Lenders and may be waived by the “Specific Permits”);
(j) the due execution and delivery of a capital increase agreement (the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially in the form and substance as listed in Schedule 6, including the completion Administrative Agent on behalf of the related registration of such capital increase by providing a copy of the approval letter issued by the relevant authorities;
(k) a board resolution of the Joint Venture Company approving the capital increase under the Capital Increase Agreement and the execution of the Capital Increase Agreement;
(l) a consent letter from Qingdao branch of Bank of Communication (the “Lender”) Lenders in a form and substance as listed in Schedule 7, which provides consent to the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015;
(m) official letters from the local environmental, market supervisory and land use right authorities, in a form and substance as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation;
(n) a written confirmation with the supporting documents from Seller that the transactions contemplated in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., the MOC, to the satisfaction of the Buyers as listed in Schedule 9;
(o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); and
(p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017).
3.2 The obligations of each of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) of such of the following conditions precedent prior to the Closing:
(a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date;
(b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of whole or in connection part, with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance without terms or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and
(d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreementconditions.
Appears in 1 contract
Sources: Four Year Revolving Term Credit Agreement (Celestica Inc)
Conditions for Closing. 3.1 The obligations occurrence of the Buyers to consummate Closing Date, the transactions contemplated by this Agreement shall be subject to the fulfillment, or waiver by the Buyers (in their sole discretion) in writing of the following conditions precedent (the “Conditions”) prior to the Closing:
(a) each of the Warranties made by the Sellers in this Agreement shall be true and correct in all respects as of the date effectiveness of this Agreement and the obligations of the Lender to make Advances hereunder are subject to the receipt by the Lender (except as set forth otherwise below) of each of the following documents, and the satisfaction of the conditions precedent set forth below, at the Borrower's own cost and expense, each of which must be satisfied to the satisfaction of the Lender (unless waived in writing by ▇▇▇▇▇▇):
(i) The Loan Documents duly executed by each Project Party that is a party thereto, along with evidence that all filings contemplated thereby have been made or will be made contemporaneously with closing; and (ii) the Security Documents to be placed of record or filed and all UCC financing statements necessary to perfect the Lender's Lien in any Collateral shall have been duly executed and acknowledged (as applicable) and recorded or filed or will be recorded and filed contemporaneously with closing in all appropriate offices and shall constitute a first and prior perfected Lien on the Collateral, subject only to Permitted Encumbrances.
(i) An environmental report and NEPA assessment; (ii) a feasibility study prepared by the Independent Engineer and addressed to the Lender or subject to a reliance letter in favor of the Lender; and (iii) such other assessments (including a Phase II assessment if recommended by such Phase I environmental assessment), seismic reports, inspections and other information with respect to the Site, including any of the foregoing submitted to or conducted by a Governmental Authority, with Lender listed as recipient or subject to a reasonably acceptable reliance letter, and all in form and substance reasonably satisfactory to the Lender.
(c) Certification that the Site is not located in a flood or natural hazard area as defined under applicable law and, if the Site is located in such a hazard area, evidence of appropriate insurance coverage.
(d) Evidence reasonably satisfactory to the Lender of (i) zoning of the Site and the System for its intended use, (ii) the issuance and availability of all necessary permits and licenses. as of the Closing Date, for the Project, (iii) the availability to the Site of all utility and municipal services reasonably required by the Lender and (iv) compliance by the Project Parties and the Project with all Governmental Authority requirements pertaining to zoning, subdivision, building, environmental, safety, historical, certificate of need and archeological preservation and other requirements applicable to the Site and/or the System.
(e) Evidence, in form and substance satisfactory to the Lender, that the business and all assets of the Borrower are adequately insured as required by Section 5.07.
(f) If the Title Examination shall disclose a mortgage or deed of trust ▇▇▇▇ or other Lien against any portion of the Site that impairs the rights of Borrowers and is not reasonably acceptable to the Lender, then the Site Landlord, the applicable Borrower and the holder of such Lien shall have entered into a reasonably acceptable non-disturbance and attornment agreement with respect to the applicable Site Lease.
(g) Copies of all Project Documents in effect as of the Closing Date, which shall be in form and content reasonably acceptable to the Lender.
(h) Copies of architectural drawings, stamped by the local municipality, as the Lender shall require.
(i) The Construction Budget certified by the Borrower to be true, correct and complete and in form, scope and content reasonably acceptable to and approved in writing by the Lender and containing a breakdown of Borrower's good-faith estimate of all costs of construction of the Project, financing costs, marketing costs and other items of cost incidental to construction of the Project, which breakdown shall be in form and content reasonably acceptable to the Lender, which is the basis upon which Advances shall be made on account of each of the categories set forth in the Construction Budget. To the extent not expressly described in the Construction Budget, the Borrower shall also provide to the Lender a construction draw schedule showing the estimated timing of construction payments and pro forma allocation to the various sources of funds described therein or updates to such construction draw schedule to reflect historical and projected future uses of such sources of funds.
(j) Payment of the Tranche A Loan Fee, the Tranche A Construction Monitoring Fee and all reimbursable costs and expenses pursuant to the Loan Documents, including, without limitation, (i) a site visit fee for the Project; (ii) costs of the Lender Engineer and Lender's insurance consultant, which may include the estimated costs for site visits to occur through the period of time required to fully Advance all Loans to the extent not already contemplated in the Construction Budget; and (iii) all reasonable fees, charges and disbursements of counsel to the Lender (directly to such counsel if requested by the Lender) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of fees, charges and disbursements as shall constitute Lender's reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Lender), all of which payments may be paid from any Advance made on the Closing Date.
(k) Lien searches (including UCC, judgments, bankruptcy and taxes) with respect to each Project Party and each Project Affiliate (including fictitious trade names, if any) at the state and county level from the jurisdiction of its organization and the jurisdiction of the Site (i) showing no existing Liens on the property of such Persons except as permitted hereunder or reasonably acceptable to Lender or (ii) accompanied by necessary termination statements, release statements and any other types of release in connection with any impermissible or unacceptable Liens disclosed by such searches that have been filed or for which satisfactory arrangements have been made for such filing on the Closing Date.
(l) The Base Case Projections, certified by Borrower to be prepared in accordance with Section 3.05(d), and including such additional information related thereto as the Lender shall reasonably request.
(m) The Borrower shall have provided evidence of Project costs expended prior to the Closing Date in such form and detail as the Lender shall reasonably request.
(n) A certificate in form and substance reasonably satisfactory to Lender from each Project Party, dated the Closing Date and signed on behalf of such Project Party by an Authorized Officer of such Project Party certifying as to and attaching (i) true copies of the Governing Documents of such Person and any amendments thereto; (ii) the resolutions of the directors/managers, partners and/or shareholders/members (as the case may be) of such Person authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party; (iii) a good standing certificate (or its equivalent) of each Project Party from the Secretary of State of such Person's jurisdiction of incorporation/formation/organization; and (iv) the names, true signatures and incumbency of the Authorized Officers of such Project Party authorized to execute and deliver the Loan Documents and Project Documents to which it is a party. The Lender may conclusively rely on such certification unless and until a later certificate revising the prior certificate has been furnished to the Lender.
(i) A Certification of the Borrower, as required by the Bank Secrecy Act (31 C.F.R. §1010.230 et. seq.), as amended from time to time, the regulations promulgated thereunder, and any successor statute and (ii) all such documentation and information requested by Lender that are necessary (including the name, address, taxpayer identification, Form W-9, Governing Documents, copies of government issued identification and names of officers of the Borrower and any Guarantor) for Lender to identify such Person in accordance with any applicable Anti-Terrorism Laws, the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder), and the rules and regulations promulgated thereunder.
(p) An opinion of counsel on behalf of the Project Parties, dated as of the Closing Date and addressed to the Lender.
(q) All required consents and approvals for each Project Party's execution and delivery of the Loan Documents to which it is a party and the performance of its obligations thereunder shall have been obtained and delivered to Lender.
(r) A closing statement, flow of funds memo or similar document as if made on of the Closing Date;Date in form and substance reasonably acceptable to the Lender shall have been executed by all parties thereto and shall reflect (i) the payment of all transaction costs and fees in connection with the transactions contemplated hereby through the Closing Date (unless alternative arrangements acceptable to Lender have been made) and (ii) to the extent applicable, the making of an Advance permitted hereunder.
(bs) each of Evidence, in a form reasonably satisfactory to Lender, that the Sellers shall Project Affiliates have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by each of delivered the Sellers prior duly executed UODA Collateral Instruments to the Closing;Borrowers in form and substance satisfactory to Lender, and that all UODA Collateral Instruments which require recording in the real property records have been recorded.
(ct) there shall Such other instruments, documents, certificates, assurances and opinions as may be no proceedings pending, or threatened, against any of set forth in the Buyers, closing checklist delivered to the Sellers or the Company arising out of or Borrower in connection with this Agreement or its subject matter (includingas the Lender shall reasonably require to evidence and secure the Obligations, without limitation, its validity, formation at issue, effect, interpretation, performance or termination);
(d) all authorization and consents of any governmental authority, and any permits in connection to comply with the Closing as contemplated under provisions hereof and the requirements of regulatory authorities to which the Lender is subject, all of which, including those referred to above in this AgreementSection 4.01, shall have been duly obtained be reasonably satisfactory in form, content and effective as of the Closing Date; including but not limited substance to the completion of the following:
(i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and
(ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AICLender.
(e) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this Agreement;
(f) the delivery of necessary documents for the Closing, including but not limited to the copies of the documents listed under Articles 3.1, Article
6.2.1 and the duly executed Agreement;
(g) the due execution of a joint venture contract (the “JV Contract”) between the Seller and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and an agreed articles of association (the “AOA”) of the Company substantially in the form and substance of Schedule 4 attached hereto;
(h) there has not occurred between the date of this Agreement and the Closing Date any Event that has a Material Adverse Effect;
(i) the Company has duly obtained certain certificates, approvals and registrations as listed in Schedule 5, on terms acceptable and to the satisfaction of the Buyers (the “Specific Permits”);
(j) the due execution and delivery of a capital increase agreement (the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially in the form and substance as listed in Schedule 6, including the completion of the related registration of such capital increase by providing a copy of the approval letter issued by the relevant authorities;
(k) a board resolution of the Joint Venture Company approving the capital increase under the Capital Increase Agreement and the execution of the Capital Increase Agreement;
(l) a consent letter from Qingdao branch of Bank of Communication (the “Lender”) in a form and substance as listed in Schedule 7, which provides consent to the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015;
(m) official letters from the local environmental, market supervisory and land use right authorities, in a form and substance as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation;
(n) a written confirmation with the supporting documents from Seller that the transactions contemplated in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., the MOC, to the satisfaction of the Buyers as listed in Schedule 9;
(o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); and
(p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017).
3.2 The obligations of each of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) of such of the following conditions precedent prior to the Closing:
(a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date;
(b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of or in connection with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and
(d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Fervo Energy Co)
Conditions for Closing. 3.1 The obligations of the Buyers to consummate the transactions contemplated by this Agreement following conditions shall be subject to the fulfillment, or waiver satisfied by the Buyers (in their sole discretion) in writing of Borrower on the following conditions precedent (the “Conditions”) prior to the ClosingClosing Date:
(a) this Agreement and the Borrower's Security Documents, in form and on terms satisfactory to the Lenders, acting reasonably, shall have been duly authorized, executed and delivered to the Administrative Agent by the Borrower and shall constitute legal, valid and binding obligations of the Borrower;
(b) the Guarantees and the Guarantors' Security Documents, in form and on terms satisfactory to the Lenders, acting reasonably, shall have been duly authorized, executed and delivered by the Guarantors party thereto to the Administrative Agent and shall constitute legal, valid and binding obligations of the Guarantors party thereto;
(c) the Borrower shall have delivered to the Administrative Agent certified copies of its constating documents and by-laws, all as amended to date, the resolution authorizing this Agreement and the Borrower's Security Documents and the incumbency of officers signing this Agreement and the Borrower's Security Documents and any documents to be provided pursuant to the provisions hereof or thereof and a certificate of compliance, good standing or like certificate with respect to the Borrower issued by appropriate government officials of the jurisdiction of its incorporation;
(d) each of the Warranties made Guarantors shall have delivered to the Administrative Agent certified copies of its certificate of incorporation and by-laws, all as amended to date, the resolution authorizing the Guarantees and the Guarantors' Security Documents to which such Guarantor is a party and the incumbency of officers signing the Guarantee and the Guarantors' Security Documents to which such Guarantor is a party and any documents to be provided pursuant to the provisions hereof or thereof and a certificate of status, good standing or like certificate with respect to such Guarantor issued by appropriate government officials of the Sellers in jurisdiction of its incorporation;
(e) MNL shall have delivered to the Administrative Agent such consent or acknowledgement regarding the continuation of the security and applicability of the Guarantor's Security Documents to which it is a party, and the Security granted thereunder, to the obligations of the Borrower under this Agreement notwithstanding the amendment to the terms of the Original Credit Agreement in form and on terms satisfactory to the Lenders, acting reasonably;
(f) the representations and warranties set forth in Section 7.1 shall be true and correct in all material respects as of the date of this Agreement on and as of the Closing Date as if made on by reference to the Closing Date;
(b) each of facts and circumstances then existing and the Sellers Borrower shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required delivered an Officer's Certificate to be performed or complied with by each of the Sellers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against any of the Buyers, the Sellers or the Company arising out of or in connection with this Agreement or its subject matter (including, without limitation, its validity, formation at issue, such effect, interpretation, performance or termination);
(d) all authorization and consents of any governmental authority, and any permits in connection with the Closing as contemplated under this Agreement, shall have been duly obtained and effective as of the Closing Date; including but not limited to the completion of the following:
(i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and
(ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AIC.
(e) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing the transfer of the Acquired Equity Interests or of the transactions contemplated under this Agreement;
(f) the delivery of necessary documents for the Closing, including but not limited to the copies of the documents listed under Articles 3.1, Article
6.2.1 and the duly executed Agreement;
(g) the due execution no Default or Event of a joint venture contract (the “JV Contract”) between the Seller Default shall have occurred and be continuing and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and Borrower shall have delivered an agreed articles of association (the “AOA”) of the Company substantially in the form and substance of Schedule 4 attached heretoOfficer's Certificate to such effect;
(h) there has not occurred between a Borrowing Base Certificate as at the date of this Agreement and fiscal month ending January 26, 2003 shall have been delivered to the Closing Date any Event that has a Material Adverse EffectAdministrative Agent;
(i) the Company has Security and all necessary financing change statements shall have been duly obtained certain certificatesregistered, approvals filed and registrations as listed recorded in Schedule 5all jurisdictions where such registration, on terms acceptable and to filing or recording, in the satisfaction opinion of the Buyers (Lenders, is necessary or advantageous to preserve, protect and perfect the “Specific Permits”)charges and security interest created or intended to be created by the Security Documents;
(j) the due execution and delivery Borrower shall have delivered to the Administrative Agent evidence of a capital increase agreement (policy of insurance by EDC in favour of the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially Borrower in the form and substance as listed in Schedule 6, including satisfactory to the completion Lenders and an acknowledgement by EDC of the related registration of such capital increase direction to pay delivered by providing a copy the Borrower as part of the approval letter issued by the relevant authoritiesBorrower's Security Documents;
(k) a board resolution of all fees and expenses payable in connection with the Joint Venture Company approving transactions contemplated hereby shall be paid in full, to the capital increase under the Capital Increase Agreement extent that such fees and the execution of the Capital Increase Agreementexpenses shall then be due and payable;
(l) a consent letter opinions of Counsel to the Borrower and counsel to the Guarantors, addressed to the Administrative Agent and the Lenders from Qingdao branch of Bank of Communication (the “Lender”) time to time party hereto, in a form and substance as listed in Schedule 7satisfactory to the Administrative Agent and each Lender, shall have been delivered to the Administrative Agent (except for the opinion of counsel to MNL, which provides consent to shall be delivered on a date occurring not more than 3 Banking Days following the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015Closing Date);
(m) official letters from there shall have been no material adverse change in the local environmentalassets, market supervisory liabilities, business, operations, condition (financial or otherwise) or prospects of the Borrower and land use right authoritiesits Subsidiaries, in considered as a form and substance as listed in Schedule 8whole, in which such authorities ensure that has occurred since October 27, 2002, the Company can continue with end of the Borrower's second quarter of its operation2003 fiscal year;
(n) a written confirmation with business plan (the supporting documents from Seller that "Business Plan") for the transactions contemplated Borrower and its Subsidiaries in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., form attached hereto as Schedule L has been approved by the MOC, to the satisfaction board of directors of the Buyers as listed in Schedule 9Borrower for the period commencing on November 12, 2002 and ending on October 29, 2004;
(o) the Borrower shall have repaid Advances outstanding under the Original Credit Agreement such that the total principal amount outstanding on the Closing Date shall not exceed Cdn. $25,000,000, provided that the aggregate undrawn Face Amount of outstanding Letters of Credit shall be deemed, for such purpose, to be principal amounts outstanding under Advances. The Administrative Agent shall prepare a letter jointly executed by Jishang Real Estate Co., Ltd (statement as to all Advances outstanding under the “Jishang”) Original Credit Agreement on the Closing Date and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any Borrower shall provide confirmation of the Sellers or the Company with respect to the equity transfer of the Company, and shall have no claim against any of the Sellers, the Company or the Buyers (“Waiver Letter”); anddetails in such statement;
(p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017).
3.2 The obligations of each all outstanding Debt of the Sellers Borrower and its Subsidiaries to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) of such of the following conditions precedent prior to the Closing:
(a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date;
(b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of or in connection with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and
(d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreement.T.
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Conditions for Closing. 3.1 The obligations of the Buyers to consummate the transactions contemplated by this Agreement following conditions shall be subject to the fulfillment, satisfied on or waiver by the Buyers (in their sole discretion) in writing of the following conditions precedent (the “Conditions”) prior to the Closing:
(a) each Borrower shall have duly authorized, executed and delivered to the Administrative Agent each of the Warranties made by the Sellers Loan Documents to which it is a party and each such Loan Document shall constitute a legal, valid and binding obligation of such Borrower, enforceable against such Borrower in this Agreement shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Dateaccordance with its terms;
(b) each Borrower shall have delivered to the Administrative Agent:
(i) a certified copy of its Organic Documents,
(ii) a certified copy of the Sellers shall have performed resolutions authorizing it to enter into, execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder;
(iii) a certificate as to the incumbency of its officers signing the Loan Documents to which it is a party; and
(iv) a certificate of status, good standing or complied like certificate with all agreements, obligations and covenants contained in this Agreement that are required respect to be performed or complied with such Borrower issued by each the appropriate government officials of the Sellers prior to the Closingjurisdiction of its incorporation;
(c) there shall be have been no proceedings pendingMaterial Adverse Change since March 31, or threatened, against any of the Buyers, the Sellers or the Company arising out of or in connection with this Agreement or its subject matter (including, without limitation, its validity, formation at issue, effect, interpretation, performance or termination)2004;
(d) all authorization and consents no Default or Event of any governmental authority, and any permits in connection with the Closing as contemplated under this Agreement, Default shall have been duly obtained occurred and effective as of the Closing Date; including but not limited to the completion of the following:
(i) the approval of the transactions contemplated under this Agreement with the local MOC (including Circular 10 approval); and
(ii) the registration of the transfer of the Acquired Equity Interests from Sellers to the Buyers with the local AIC.be continuing;
(e) no governmental authority of competent jurisdiction each Borrower shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect executed and (ii) has the effect of making the transfer of the Acquired Equity Interests delivered to the Buyers illegal or otherwise prohibiting or preventing the transfer Administrative Agent a confirmation of the Acquired Equity Interests or of the transactions contemplated under this Agreementits Guarantee;
(f) opinions of Borrowers' Counsel, substantially in the delivery form of necessary documents for the ClosingSchedule O, including but not limited shall have been delivered to the copies of the documents listed under Articles 3.1, Article
6.2.1 and the duly executed AgreementAdministrative Agent;
(g) the due execution of a joint venture contract (the “JV Contract”) between the Seller and the Buyers substantially in the form and substance of Schedule 3 attached hereto; and an agreed articles of association (the “AOA”) none of the Company substantially in undertaking, property or assets of any of the form Borrowers shall be subject to any Liens other than (i) Permitted Encumbrances or (ii) Liens with respect to which the Administrative Agent shall have received satisfactory evidence of the repayment of the underlying obligation and substance fully executed discharges and releases thereof, and each of Schedule 4 attached heretothe Borrowers shall have delivered to the Administrative Agent a Permitted Encumbrance Certificate if any of the undertaking, property or assets of such Borrower is subject to any Liens;
(h) there has not occurred between the date of Borrowers shall have paid all fees and expenses relating to the Facility provided for in this Agreement as set out in Section 2.14 and any other Loan Document, to the Closing Date any Event that has a Material Adverse Effect;extent then owing; and
(i) all amounts owing by the Company has duly obtained certain certificates, approvals Borrowers under the Four-Year Unsecured Credit Agreement shall have been fully repaid and registrations as listed such Four-Year Unsecured Credit Agreement shall have been terminated and cancelled and shall cease to be of any further force and effect. The conditions set forth in Schedule 5, on terms acceptable and to this Section 6.1 are inserted for the satisfaction sole benefit of the Buyers (Lenders and may be waived by the “Specific Permits”);
(j) the due execution and delivery of a capital increase agreement (the “Capital Increase Agreement”) between Yiyuan and the Buyers substantially in the form and substance as listed in Schedule 6, including the completion Administrative Agent on behalf of the related registration of such capital increase by providing a copy of Lenders in whole or in part, with or without terms or conditions. Prior to waiving any condition set forth in this Section 6.1, the approval letter issued by the relevant authorities;
(k) a board resolution of Administrative Agent shall consult with the Joint Venture Company approving the capital increase under the Capital Increase Agreement and the execution of the Capital Increase Agreement;
(l) a consent letter from Qingdao branch of Bank of Communication (the “Lender”) in a form and substance as listed in Schedule 7, which provides consent to the Company for the consummation of the transactions contemplated under this Agreement in accordance with the loan agreements between the Lender and the Company dated October 28, 2014 and January 20, 2015;
(m) official letters from the local environmental, market supervisory and land use right authorities, in a form and substance as listed in Schedule 8, in which such authorities ensure that the Company can continue with its operation;
(n) a written confirmation with the supporting documents from Seller that the transactions contemplated in this Agreement does not require any approval from the Chinese Antitrust authority, i.e., the MOC, to the satisfaction of the Buyers as listed in Schedule 9;
(o) a letter jointly executed by Jishang Real Estate Co., Ltd (the “Jishang”) and Ruiyuandingshi Investment Co., Ltd (the “Ruiyuandingshi”) (in a form and substance as listed in Schedule 10), where Jishang and Ruiyuandingshi each waives any of its right in the equity interest and any other interest in the Company and any prior agreement it executed with any of the Sellers or the Company with respect to the equity transfer of the Company, Lead Arrangers and shall have no claim against any of act reasonably given the Sellers, the Company or the Buyers (“Waiver Letter”); and
(p) The Company has completed the renewal of China Compulsory Certification as listed in Schedule 11 (the valid term at least until December 31, 2017).
3.2 The obligations views of each of the Sellers to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, or written waiver by each of the Sellers (in its sole discretion) Joint Lead Arrangers with respect of such of the following conditions precedent prior to the Closing:
(a) each of the warranties made by the Buyers in Article 8 of this Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as if made on the Closing Date;
(b) the Buyers shall have performed or complied with all agreements, obligations and covenants contained in this Agreement that are required to be performed or complied with by the Buyers prior to the Closing;
(c) there shall be no proceedings pending, or threatened, against the Buyers, the Sellers and the Company arising out of or in connection with this Agreement or its subject matter (including its validity, formation at issue, effect, interpretation, performance or termination) or any transaction contemplated by this Agreement, that, if adversely determined against such person, would have any impact on the Company’s Business in any aspect; and
(d) no governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which (i) is in effect and (ii) has the effect of making the transfer of the Acquired Equity Interests to the Buyers illegal or otherwise prohibiting or preventing consummation of the transaction contemplated under this Agreementwaiver.
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