Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent: (i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be; (ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect; (iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; (iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default; (v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and (vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Berry Plastics Corp)
Conditions Precedent. 21.1 The obligation respective obligations set forth herein of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date Landlord and the ▇▇▇▇▇▇ Acquisition Closing Date, are Tenant shall be subject to the satisfactionfulfillment of the conditions set forth below, or waiver in accordance with Section 10.5, of such conditions shall have been waived by the following conditions precedentTenant:
(ia) Administrative Agent The Virginia Racing Commission and any other applicable regulatory bodies shall have received granted a fully license to Tenant to own and operate a satellite wagering facility in the Premises;
(b) Tenant shall have secured all requisite State and local governmental approvals for the operation of a restaurant and satellite wagering facility;
(c) Tenant shall have secured a license to serve alcoholic beverages from the Virginia Alcohol Beverage Control Bureau;
(d) The current holder of a mortgage affecting the Premises shall have executed and delivered Funding Notice or Issuance Noticea Subordination, as Nondisturbance and Attornment Agreement substantially in the case may beform of Exhibit D attached hereto;
(iie) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments Landlord shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date have secured any Tenant or Lender consents related to the same extent as though made on and as of Shopping Center that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation are required by Tenant’s use of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information Premises as Issuing Bank may reasonably require described in connection with the issuance of such Letter of Creditparagraph 11.5; and
(vif) Tenant shall have satisfied itself that it can obtain governmental approvals for its signs as provided in Section 8.2, and that it can operate its business under the case of a Revolving Loan used in connection with current zoning affecting the financing of a Permitted Acquisition Shopping Center and the Premises.
(other than a Revolving Loan g) Landlord and Tenant shall have reached agreement on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)location for Tenant’s telecommunications equipment, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000satellite dish, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders etc,. pursuant to Section 5.1(b8.3. Notwithstanding the foregoing, if such conditions precedent set forth in clauses (a) – (c) above have not been satisfied or waived by Tenant on or before May 15, 2003, and the conditions precedent set forth in clauses (d), determined on a pro forma basis in accordance with Section 6.8(d(e), (f) after giving effect to the proposed Credit Extension, shall and (g) above have not exceed 5.00:1.00 in respect of Fiscal Quarters ending been satisfied or waived by Tenant on or prior before ninety (90) days after the date hereof, Tenant may terminate this Lease upon written notice to December 25Landlord following which Landlord and Tenant shall have no obligations to one another hereunder. The May 15, 2004; and 2003 deadline date for Tenant to terminate based on clauses (iiia) 4.75:1.00 in respect - (c) may be extended through May 1, 2004 upon payment by Tenant of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall a non-refundable deposit of $2,500.00 per month, such payments to be entitled, but not obligated to, request and receive, prior to made by the making 10th day of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstanceseach month beginning with July 2003.
Appears in 1 contract
Conditions Precedent. (a) The obligation of each Lender LaSalle to make any fund the initial Revolving Loan, or Issuing Bank to issue any fund Term Loan A and Term Loan B, and to co-sign as applicant for the initial Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the Closing Date of the following conditions precedent:
(i) Administrative Agent LaSalle shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as Schedule 15(a)(i) (the case may be"Closing Document List");
(ii) after making the Credit Extensions requested on such Credit DateNo event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then as determined by LaSalle in effectits sole discretion;
(iii) LaSalle shall have received payment in full of all fees and expenses payable to it by Borrower on or before the Closing Date;
(iv) LaSalle shall have determined that immediately after giving effect to (A) the making of the Loans requested to be made on the Closing Date, if any, (B) the issuance of the initial Letter of Credit, if any, requested to be made on the Closing Date, and (C) the payment or reimbursement by Borrower to LaSalle for all closing costs and expenses incurred by or owed to LaSalle in connection with the transactions contemplated hereby, including without limitation the closing fee and the fees and expenses of LaSalle's counsel, on a pro forma basis the Excess Availability of Borrower shall not be less than Five Hundred Thousand Dollars ($500,000.00);
(v) LaSalle shall have received a certificate from Borrower's chief executive officer or chief financial officer, pursuant to which such officer shall certify that in calculating the Excess Availability described in clause (iv) above, Borrower's outstanding trade payables were (and are) current and not past due in any material respect; 36
(vi) There shall have been no sale or other disposition or damage or destruction of any Equipment, unless such sale or other disposition or damage or destruction has been fully disclosed to LaSalle, and LaSalle has in writing agreed to advance the proceeds of Term Loan A notwithstanding such sale or other disposition or damage or destruction, provided that in such event LaSalle, in its sole discretion, may reduce the amount available to be advanced under Term Loan A by such amount as LaSalle may deem appropriate;
(vii) LaSalle shall have received opinions of Borrower's general and local counsel in states in which Borrower conducts its business or owns property on such Credit matters as LaSalle deems appropriate;
(viii) LaSalle shall have received, and shall have reviewed and approved, an opening balance sheet for Borrower as well as monthly projections for Borrower's fiscal year ending December 31, 1997;
(ix) LaSalle shall have completed its background checks and inquiries regarding Borrower and its principals, and shall have discovered no information regarded as unfavorable by LaSalle; and
(x) The Obligors shall have executed and delivered to LaSalle all documents which LaSalle determines are reasonably necessary to consummate the transactions contemplated hereby; and
(xi) LaSalle shall have received a Subordination Agreement executed by the Seller pursuant to which the Subordinated Debt is subordinated to the Obligations pursuant to terms acceptable to LaSalle.
(b) After the Closing Date, the obligation of LaSalle to make any requested Revolving Loan, or to co-sign as applicant for any requested Letter of Credit is subject to the satisfaction of the conditions precedent set forth below. Each such request shall constitute a representation and warranty that such conditions are satisfied:
(i) All representations and warranties contained herein in this Agreement and in the other Credit Documents Other Agreements shall be true and correct in all material respects on and as of that Credit Date to the same extent date of such request, as though made on and as of that dateif then made, except to the extent such other than representations and warranties specifically that relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(ivii) as No Default or Event of such Credit Date, no event Default shall have occurred and be continuing occurred, or would result from the consummation making of the applicable Credit Extension that would constitute an Event of Default requested Revolving Loan or a Default;
(v) on or before the date of issuance of any the requested Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Creditwhich has not been waived; and
(viiii) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings No event shall have delivered occurred which has had or could reasonably be expected to have a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal QuartersMaterial Adverse Effect. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.37
Appears in 1 contract
Sources: Loan and Security Agreement (Antigua Enterprises Inc)
Conditions Precedent. This Amendment shall not become effective until, and shall become effective on, the Business Day when each of the following conditions shall have been satisfied (the “Amendment Effective Date”):
(a) Each Noteholder shall have received this Amendment, duly executed by the Fund.
(b) The obligation Required Holders shall have consented to this Amendment as evidenced by their execution thereof.
(c) The representations and warranties of each Lender the Fund set forth in Section 3 hereof shall be true and correct as of the date of the execution and delivery of this Amendment and as of the Amendment Effective Date.
(d) Any consents or approvals from any holder or holders of any outstanding security or indebtedness of the Fund and any amendments of agreements pursuant to make which any Loan, securities or Issuing Bank indebtedness may have been issued which shall be necessary to issue any Letter permit the consummation of Credit, on any Credit Date, including the Effective Date transactions contemplated hereby shall have been obtained and all such consents or amendments shall be reasonably satisfactory in form and substance to the holders and their special counsel.
(e) Each Noteholder shall have received such certificates of officers of the Fund as it may reasonably request with respect to this Amendment and the transactions contemplated hereby.
(f) The Fund shall have paid the fees and disbursements of the Noteholders’ special counsel, ▇▇▇▇▇▇▇ Acquisition Closing Dateand ▇▇▇▇▇▇ LLP, incurred in connection with the negotiation, preparation, execution and delivery of this Amendment and the transactions contemplated hereby which fees and disbursements are subject reflected in the statement of such special counsel delivered to the satisfaction, or waiver in accordance with Section 10.5, Fund at the time of the following conditions precedent:execution and delivery of this Amendment.
(g) (i) Administrative Agent The Bank Facility, (ii) the Second Amendment Agreement to Note Purchase Agreement dated July 12, 2012, (iii) the First Amendment to Note Purchase Agreement dated June 6, 2013 and (iv) the First Amendment Agreement to Note Purchase Agreement dated April 30, 2014 shall close concurrently with the transaction contemplated hereby. Each Noteholder shall have received fully executed copies of (a) the Bank Facility, (b) the Security Agreement (as defined in the Bank Facility), (c) the First Amendment Agreement to Security Agreement dated as of May 29, 2018 which amends the Security Agreement (as defined in the Note Agreement), (d) the Security Agreement (including the First Amendment Agreement to Amended and ClearBridge Energy MLP Fund Inc. First Amendment Agreement to Restated Security Agreement (as defined in the 2012 Note Agreement), (e) the Security Agreement (including the First Amendment Agreement to Security Agreement (as defined in the 2013 Note Agreement), (f) the Security Agreement (including the First Amendment Agreement to Security Agreement (as defined in the 2014 Note Agreement), (g) the Intercreditor Agreement dated as of May 29, 2018, (h) the Temporary Control Agreement, (i) the Continuing Control Agreement and (j) each Custody Agreement, each in a form reasonably satisfactory to the Noteholders.
(h) Each Noteholder shall have received a fully executed and delivered Funding Notice or Issuance Noticecopy of a Reaffirmation of Financing Agreements dated May 29, as 2018 (the case may be;“Reaffirmation”).
(iii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent Each Noteholder shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance legal opinions of such Letter of Credit; and
(vix) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay & ▇▇▇▇▇▇▇▇ Acquisition Financing Requirements)LLP, if Maryland counsel to the Fund, (Ay) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or Fund and (Bz) Ropes & ▇▇▇▇, LLP, Massachusetts counsel to the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for Fund, each in a form reasonably satisfactory to the previous four Fiscal Quarters Noteholders.
(together with any Permitted Acquisition agreed to and not yet consummatedj) exceeds $20,000,000, then the Chief Financial Officer of Holdings Each Noteholder shall have delivered received from the Fund a Compliance Certificate representing and warranting and otherwise demonstrating manually signed certificate from the Secretary or Assistant Secretary of the Fund, in all respects satisfactory to the satisfaction Noteholders, (i) certifying as to the incumbency of Administrative Agent that, as of such Credit Date, the Leverage Ratio as authorized persons of the last day Fund executing this Amendment, (ii) attaching true, complete and correct copies of the most recent Fiscal Quarter for resolutions duly adopted by the board of directors of the Fund approving this Amendment and the transactions contemplated hereby, all of which financial statements have been delivered to are in full force and effect on the Lenders pursuant to Section 5.1(b)date hereof, determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 attaching true, complete and correct copies of each such amendment, supplement or modification to the Fund’s charter documents since June 11, 2015.
(k) All corporate and other proceedings in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders connection with the transactions contemplated by this Amendment and all documents and instruments incident to such transactions shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing ifyou and your special counsel, in the good faith judgment and you and your special counsel shall have received all such counterpart originals or certified or other copies of such Agent documents as you or Requisite Lender such request is warranted under the circumstancesthey may reasonably request.
Appears in 1 contract
Sources: First Amendment Agreement (ClearBridge Energy MLP Fund Inc.)
Conditions Precedent. The obligation of each Lender shall, from time to time, make any Loan, Additional Advances to be used solely to pay or Issuing Bank to issue any Letter of Credit, on any Credit Date, including reimburse Borrower for Approved Renovation/Re-Branding Expenses at the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of Property; provided the following conditions precedentprecedent are satisfied:
(ia) Administrative Agent shall have received Lender receives a fully executed notice of borrowing in the form of Schedule 7 at least ten (10) Business Days before the date, and delivered Funding Notice or Issuance Noticeagain on the date, as the case may beproposed Additional Advance is to be made;
(iib) Both immediately prior to the making of the Additional Advance and after making the Credit Extensions requested on such Credit Dategiving effect thereto, the Total Utilization no Default or Event of Revolving Commitments Default shall not exceed the Revolving Commitments then in effectbe continuing;
(iiic) as of such Credit Date, the The representations and warranties contained herein made by Borrower in this Agreement and in the other Credit Loan Documents shall be true and correct in all material respects on and as of that Credit Date to the date of the making of the Additional Advance with the same extent force and effect as though if made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(ivd) as of such Credit Date, There shall be no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Defaultmore than one Additional Advance during any calendar month;
(ve) on In no event will the aggregate amount of the requested Additional Advance, together with all prior Additional Advances previously made by Lender exceed $5,000,000;
(f) With respect to any Additional Advance, such Additional Advance will be used solely to make a contribution to Owner for Owner to pay for (or before to reimburse Owner for) Approved Renovation/Re-Branding Expenses at the Property;
(g) Lender shall have received (i) a title search showing that since the making of the last Additional Advance there has been no change in the state of title to the Property and no survey exceptions with respect to the Property not theretofore approved by Lender, together with other evidence satisfactory to Lender that no mechanic’s Liens or other Liens have been filed and remain filed with respect to the Property and (ii) an endorsement to the applicable UCC Insurance Policy, which endorsement shall have the effect of (x) updating the effective date of such UCC Insurance Policy to the date of issuance the making of any Letter the Additional Advance and (y) increasing the coverage of Creditsuch UCC Insurance Policy by an amount equal to the amount of the Additional Advance;
(h) All fees and expenses payable to Lender, Administrative Agent including the fees and expenses referred to in Sections 2.7 and 5.30, to the extent then due and payable, shall have been (or contemporaneously are being) paid in full, and all title premiums and other title and survey charges shall have been (or contemporaneously are being) paid in full;
(i) Lender shall have received reasonably satisfactory evidence that all permits, licenses and approvals required for any work associated with such requested disbursement have been obtained and are in full force and effect;
(j) To the extent reasonably requested by Lender, Lender shall have received such affidavits and certificates as to such matters as Lender may reasonably request, including certificates of the approved architect or engineer, if applicable, or, of a construction consultant retained by Lender at Borrower’s expense in connection with any work that (1) all of the work completed has been done substantially in compliance with the plans and specifications and applicable Legal Requirements, and (2) the disbursement of such Additional Advance is required to reimburse payments of costs incurred for Approved Renovation/Re-Branding Expenses or to pay costs incurred for Approved Renovation/Re-Branding Expenses due to, contractors, subcontractors, materialmen, laborers, engineers, architects or other information persons rendering services or materials or paying for such work;
(k) Borrower shall have delivered (or shall have caused Owner to deliver) to Lender lien waivers (conditional or otherwise) executed and delivered by the general contractor and all subcontractors, materialmen and other Persons requested by Lender for all work for which a Additional Advance has previously been made or for which the Additional Advance in question is being requested;
(l) To the extent reasonably requested by Lender, Lender shall have received from Borrower an Officer’s Certificate: (1) certifying that all work relating to work performed on or prior to the date of the certificate has been completed in a good and workmanlike manner in accordance with all Legal Requirements, (2) identifying each Person that supplied labor or materials with respect to such capital improvement, (3) stating that each general contractor and architect retained for any work are reputable and licensed or otherwise authorized to do business in the State and have been engaged pursuant to arms’ length agreements entered into on market terms and conditions and (4) stating that each such Person has been or upon receipt of the requested Additional Advance will be paid in full for work for which a Additional Advance has been made or is being requested;
(m) [Intentionally Deleted];
(n) When such work has been completed, Lender shall have received a copy of any certificate or certificates required by law to render occupancy of the applicable Issuance Notice, and Improvements legal;
(o) Lender shall have received such other documents relating to the Property or information the Additional Advance as Issuing Bank Lender may reasonably require in connection with the issuance of such Letter of Creditrequest; and
(vip) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)If necessary, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings Borrower shall have delivered either (1) (x) obtained a Compliance Certificate representing new Interest Rate Protection Agreement satisfying each of the terms and warranting conditions set forth in Section 2.6 hereof and otherwise demonstrating in a notional amount equal to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as outstanding principal balance of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) Loan after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; applicable Additional Advance and (iiiy) 4.75:1.00 shall have delivered to Lender an Assignment of Interest Rate Protection Agreement on Lender’s then standard form with respect to such new Interest Rate Protection Agreement or (2) increased the notional amount under any existing Interest Rate Protection Agreement by an amount equal to the applicable Additional Advance, which Interest Rate Protection Agreement shall otherwise remain on the same terms and shall continue to satisfy the conditions set forth in respect Section 2.6 hereof. If an Interest Rate Protection Agreement satisfying each of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitledthe terms and conditions set forth in Section 2.6 hereof is, but not obligated to, request and receivealready (i.e., prior to the making of any Credit ExtensionAdditional Advance in question), additional information reasonably satisfactory in a notional amount equal to the requesting party confirming the satisfaction of any then outstanding principal balance of the foregoing ifLoan (after giving effect to the Additional Advance in question) and an Assignment of Interest Rate Protection Agreement on Lender’s then standard form with respect to such Interest Rate Protection Agreement is already (i.e., prior to the Additional Advance in question) in effect, the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesconditions set forth in this clause (p) shall be deemed satisfied.
Appears in 1 contract
Conditions Precedent. (a) The obligation of each Lender LaSalle to make any Loan, or Issuing Bank fund the Term Loan and to issue any Letter of Credit, on any Credit Date, including fund the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are initial Revolving Loan is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the Closing Date of the following conditions precedent:
(i) Administrative Agent LaSalle shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as SCHEDULE 15(a)(i) (the case may be"Closing Agenda");
(ii) after making the Credit Extensions requested Except as set forth on such Credit DateSchedule 15(a), the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Datesince April 4, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date1999, no event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect, as determined by LaSalle in its sole discretion;
(iii) LaSalle shall have received payment in full of all fees and be continuing expenses payable to it by Borrower on or would result from before the consummation Closing Date;
(iv) LaSalle shall have determined that immediately after giving effect to (A) the making of the applicable Credit Extension that would constitute an Event initial Loans, including without limitation the Term Loan, the Capital Expenditure Loan, and the Revolving Loans, if any, requested to be made on the Closing Date, and (B) the payment or reimbursement by Borrower of Default or LaSalle for all closing costs and expenses incurred in connection with the transactions contemplated hereby, on a Defaultpro forma basis the Excess Availability of Borrower shall not be less than Five Hundred Thousand Dollars ($500,000.00);
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent LaSalle shall have received all other information required by a certificate from Borrower's chief executive officer or chief financial officer, pursuant to which such officer shall certify that in calculating the applicable Issuance NoticeExcess Availability described in clause (iv) above, Borrower's outstanding trade payables were (and such other documents or information as Issuing Bank may reasonably require are) current and not past due in connection with the issuance of such Letter of Credit; andany material respect;
(vi) in The Obligors shall have executed and delivered to LaSalle all documents which LaSalle determines are reasonably necessary to consummate the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition transactions contemplated hereby;
(other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if vii) LaSalle shall have received evidence that (A) LIG has made payment into escrow of One Hundred Fifty Thousand Dollar ($150,000.00) for the aggregate amount nine (9) month extension of Permitted Acquisition Expenses exceeds $10,000,000 or LIG's option to purchase substantially all of the assets of the Borrower, and (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions only conditions for the previous four Fiscal Quarters release of such funds to the Borrower from the escrow are (together with any Permitted Acquisition agreed x) the approval by the Borrower's shareholders of the nine (9) month extension of LIG's option, (y) the consent by Carolina First Bank to the execution of LIG's option, which consent has been obtained, and not yet consummated(z) exceeds $20,000,000, then the Chief Financial Officer consent of Holdings LaSalle to the extension of LIG's option;
(viii) Borrower shall have delivered to LaSalle a Compliance Certificate representing list of all documents and warranting agreements between Borrower and otherwise demonstrating LIG and LaSalle shall complete a satisfactory review of all such documents and agreements which LaSalle has requested the Borrower to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered deliver to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesLaSalle.
Appears in 1 contract
Sources: Loan and Security Agreement (Phoenix Medical Technology Inc)
Conditions Precedent. The obligation of each Lender to make any fund the Term Loan, or Issuing Bank to fund the initial Revolving Loan, and to issue any or cause to be issued the initial Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the date hereof of the following conditions precedent:
(ia) Administrative Agent Lender shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as Schedule 17(a) (the "CLOSING DOCUMENT LIST") in each case may bein form and substance satisfactory to Lender;
(iib) after making the Credit Extensions requested on such Credit DateSince September 30, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date2003, no event shall have occurred and which has had or could reasonably be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or expected to have a DefaultMaterial Adverse Effect on any Obligor, as determined by Lender in its sole discretion, determined in good faith;
(vc) Lender shall have received payment in full of all fees and expenses payable to it by Borrowers or any other Person in connection herewith, on or before disbursement of the initial Loans hereunder;
(d) Lender shall have determined that immediately after giving effect to (A) the making of the initial Loans, including without limitation the Term Loan and the Revolving Loans, if any, requested to be made on the date of hereof, (B) the issuance of any the initial Letter of Credit, Administrative Agent shall have received if any, requested to be made on such date, (C) the payment of all other information required fees due upon such date and (D) the payment or reimbursement by the applicable Issuance Notice, Borrowers of Lender for all closing costs and such other documents or information as Issuing Bank may reasonably require expenses incurred in connection with the issuance transactions contemplated hereby, Borrowers have Excess Availability of such Letter of Credit; andnot less than Five Hundred Thousand and No/100 Dollars ($500,000.00);
(vie) in The Obligors shall have executed and delivered to Lender all such other documents, instruments and agreements which Lender determines are reasonably necessary to consummate the case transactions contemplated hereby, including, without limitation, a secured Continuing Unconditional Guaranty of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)International, if Inc.; and
(Af) Renaissance US Growth and Income Trust PLC, Renaissance Capital Group, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and Begnt ▇▇▇▇▇ shall each execute and deliver a Subordination Agreement in form and substance satisfactory to Lender. In addition, the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together maturity dates with any Permitted Acquisition agreed respect to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings all such indebtedness shall have delivered be extended to a Compliance Certificate representing and warranting and otherwise demonstrating date subsequent to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesOriginal Term.
Appears in 1 contract
Sources: Loan and Security Agreement (Digital Recorders Inc)
Conditions Precedent. (a) The obligation of each Lender Agent and Lenders to make any fund the initial Revolving Loan, or Issuing Bank and to issue any or cause to be issued the initial Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the Closing Date of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as Schedule 17(a) (the “Closing Document List”) in each case may bein form and substance satisfactory to Lender;
(ii) after making the Credit Extensions requested on such Credit DateSince December 31, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date2005, no event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect on any Obligor, as determined by Agent or Requisite Lenders in their Permitted Discretion;
(iii) Agent shall have received payment in full of all fees and be continuing expenses payable to it by Borrowers or would result from the consummation any other Person in connection herewith, on or before disbursement of the applicable Credit Extension initial Loans hereunder;
(iv) Agent shall have determined that would constitute an Event immediately after giving effect to (A) the making of Default the initial Loans, if any, requested to be made on the Closing Date, (B) the issuance of the initial Letter of Credit, if any, requested to be made on such date, (C) the payment of all fees due upon such date and (D) the payment or a Defaultreimbursement by Borrowers of Agent for all closing costs and expenses incurred in connection with the transactions contemplated hereby, Borrowers have Excess Availability of not less than Ten Million and No/100 Dollars ($10,000,000);
(v) on or before the date of issuance of any Letter of Credit, Administrative The Agent shall have received all other information required (A) audited consolidated financial statements for Coachmen and its Subsidiaries for the Fiscal Years ended December 31, 2003, December 31, 2004 and December 31, 2005 and (B) unaudited interim consolidated financial statements for Coachmen and its Subsidiaries for each fiscal month and quarterly period in the Fiscal Year ending December 31, 2006 ended within forty-five (45) days of the Closing Date which, in each case, shall be in form and substance satisfactory to Agent after the latest fiscal year referred to in clause (i) above;
(vi) The Agent and the Lenders shall have received projected income statements, balance sheets and cash flow statements prepared by Coachmen and giving effect to the Revolving Loans and the use of proceeds therefrom which, in each case, shall be in form and substance satisfactory to Agent;
(vii) The Agent shall have received a field audit examination and appraisals (which shall include, without limitation, appraisals of inventory, machinery and equipment, and real estate) requested by the applicable Issuance Notice, Agent and such other documents or information as Issuing Bank may reasonably require the results thereof shall be satisfactory to the Agent in connection with its sole and absolute discretion; provided that Agent and Coachmen shall mutually determine prior to the issuance Closing Date which real estate and equipment appraisals shall be required;
(viii) Each of such Letter of Creditthe conditions in subsection 17(b) shall have been met; and
(viix) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings The Obligors shall have delivered a Compliance Certificate representing executed and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b)Agent all such other opinions, determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extensiondocuments, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25certificates, 2004; instruments and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any agreements which Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information may reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesrequest.
Appears in 1 contract
Sources: Loan and Security Agreement (Coachmen Industries Inc)
Conditions Precedent. This Amendment shall not become effective until the date (the "AMENDMENT EFFECTIVE DATE") on which each of the following conditions precedent have been satisfied:
(a) Delivery to the parties hereto of this Amendment duly executed and delivered by each other party hereto;
(b) Delivery to Owner Lessor, Owner Trustee, Owner Participant, Funding LLC, the Midwest LC Issuer, the RCE LC Issuer and the Holder Representative of the Synthetic Lease Basic Documents in form and substance satisfactory to the recipients;
(c) All conditions precedent to effectuate the Synthetic Lease Transaction have been satisfied (including delivery of the ComEd Synthetic Lease Consent) or waived;
(d) The obligation of each Lender to make any LoanOwner Lessor, or Issuing Bank to issue any Letter of CreditOwner Trustee, on any Credit DateOwner Participant, including Funding LLC, the Midwest LC Issuer, the RCE LC Issuer and the Holder Representative shall have received opinions, dated the Amendment Effective Date and addressed to the recipients from (i) the general counsel to Holdings, Midwest and ▇▇▇▇▇▇▇ Acquisition Closing DateHoldings, are subject (ii) the special New York counsel to Holdings, Midwest and ▇▇▇▇▇▇▇ Holdings and (iii) Federal Energy Regulatory Commission counsel to the satisfactionHoldings, or waiver Midwest and ▇▇▇▇▇▇▇ Holdings. Each such opinion shall be in accordance with Section 10.5, of form and substance reasonably satisfactory to the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may berecipients;
(iie) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the The representations and warranties contained herein of Holdings, Midwest and ▇▇▇▇▇▇▇ Holdings as set forth in the other Credit Documents Participation Agreement, shall be true and correct in all material respects on and as of that Credit the Amendment Effective Date after giving effect to the same extent as though made on and amendments contemplated hereby (unless stated to be given as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations representation and warranties warranty shall have been be true and correct in all material respects on and only as of such earlier date;
); and (ivf) as As of such Credit the Amendment Effective Date, no Lease Event of Default, or Event of Loss or event that, with passage of time or giving of notice or both, would constitute a Lease Event of Default or an Event of Loss, shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancescontinuing.
Appears in 1 contract
Conditions Precedent. The obligation Dealer Managers shall, by notice to the Republic (and in the case of each Lender paragraph (m) below, only after consultation with the Republic), be entitled to make withdraw as Dealer Managers in connection with the Offer at any Loantime if any of the conditions set forth in this Section 9 is not met, has not been satisfied or waived by the Dealer Managers and cannot be satisfied on or before the Expiration Date, or Issuing Bank to issue any Letter of Credit, on any Credit the Settlement Date, including as applicable, and the Effective obligations of the Dealer Managers hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties and other statements of the Republic contained herein are now, and at all times during the Offer and until the Settlement Date will be, true and correct in all material respects.
(b) The Republic at all times during the Offer shall have performed all of its respective obligations hereunder theretofore required to have been performed.
(c) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall be in effect on the Commencement Date, the Announcement Date, the Expiration Date and the Settlement Date and no proceedings for that purpose shall be pending before, or threatened by, the Commission on the Commencement Date, the Announcement Date, the Expiration Date, and the Settlement Date and the Dealer Managers shall have received, on each of the Commencement Date and the Settlement Date, certificates dated, respectively, the Commencement Date and the Settlement Date and signed by a duly authorized officer of the Republic to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before or, to the knowledge of the Republic, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(d) On each of the Commencement Date and the Settlement Date, Shearman & Sterling LLP, your United States counsel, shall have furnished to you, as Dealer Managers, such written opinion or opinions, dated the respective date of delivery thereof, with respect to the validity of the Agreements, the Registration Statement, the Disclosure Package and the Prospectus and such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering their opinions, Shearman & Sterling LLP may rely as to all matters of Uruguayan law upon the opinions referred to in paragraphs (e) and (f) of this Section 9.
(e) On each of the Commencement Date and the Settlement Date, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, your Uruguayan counsel, shall have furnished to you, as Dealer Managers, such written opinion or opinions, dated the respective date of delivery thereof, with respect to the validity of the Agreements, the Registration Statement and the Prospectus and such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering such opinion, such counsel may rely as to all matters of United States Federal and New York law upon the opinion of Shearman & Sterling LLP referred to in paragraph (d) of this Section 9.
(f) On each of the Commencement Date and the Settlement Date, Counsel to the Republic shall have furnished to you her written opinion, dated the respective date of delivery thereof in substantially the form of Annex I attached hereto. In rendering such opinion, such counsel may state that his opinion is limited to matters of Uruguayan law and may rely as to all matters of United States federal and New York law upon the opinion of ▇▇▇▇▇▇ Acquisition Closing ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP referred to in paragraph (g) of this Section 9.
(g) On each of the Commencement Date and the Settlement Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP United States counsel for the Republic and Banco Central, shall have furnished to you their written opinions, dated the respective date of delivery thereof in substantially the form of Annex II attached hereto. In rendering such opinions, such counsel may state that their opinions are subject limited to the satisfactionfederal laws of the United States and the laws of the State of New York and may rely as to all matters of Uruguayan law upon the opinions of Counsel to the Republic, referred to in paragraph (f) of this Section 9.
(h) On or waiver in accordance prior to the Settlement Date, there will have been delivered to you as Dealer Managers (i) certified copies of the Decree, together with Section 10.5a certified English translation thereof, and (ii) certified copies, together with certified English translations thereof, of all approvals, authorizations, consents and orders required for the following conditions precedent:issuance and exchange of the 2045 Bonds and the execution of this Agreement and the Decree, and all such approvals, authorizations, consents and orders shall be in full force and effect.
(i) Administrative Agent shall have received a fully executed On each of the Commencement Date and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Settlement Date, there will have been delivered to you as Dealer Managers certificates of duly authorized officials of the Total Utilization of Revolving Commitments shall not exceed Republic, dated the Revolving Commitments then in effect;
(iii) as of such Credit Commencement Date and the Settlement Date, to the following effect (x) the representations and warranties contained herein and of the Republic in the other Credit Documents shall be this Agreement are true and correct in all material respects on and as of that Credit Date to with the same extent effect as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case had been made at and as of the respective date of such certificate (other than such representations and warranties which are made as of a specified date), (y) the Republic has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the respective date of such certificate and (z) no proceeding has been initiated, or to the best of his or her knowledge, threatened, to restrain or enjoin the Offer or the issuance or delivery of the 2045 Bonds by the Republic pursuant to the Offer or in any manner to question the laws, proceedings, directives, resolutions, approvals, consents or orders under which the Offer will be effected or pursuant to which the 2045 Bonds will be issued or to question the validity of the Offer or the 2045 Bonds and none of said laws, proceedings, directives, resolutions, approvals, consents or orders has been repealed, revoked or rescinded in whole or in part.
(j) On or prior to the Settlement Date, there shall have been true delivered to you as Dealer Managers, in form and correct in all material respects on and as substance satisfactory to you, certificates of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation duly authorized officials of the applicable Credit Extension that would constitute an Event Republic as to the authority, incumbency and specimen signatures of Default the persons who have executed or a Default;
(v) on or before will execute this Agreement, the date of issuance of any Letter of Credit, Administrative Agent shall have received all 2045 Bonds and the other information required instruments and documents to be executed and delivered hereunder and thereunder by the applicable Issuance NoticeRepublic as the case may be, and such other documents documents, opinions and certificates as you or information as Issuing Bank your counsel may reasonably require in connection with the issuance of such Letter of Credit; andrequire.
(vik) The Republic shall have furnished to you on the Settlement Date a certificate in English, dated the case date of delivery, to the effect that as of its effective date, the Registration Statement and any further amendment or supplement thereto, do not contain an untrue statement of a Revolving Loan used in connection with material fact or omit to state a material fact necessary to make the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount statements therein not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent misleading; that, as of such Credit the Expiration Date, the Leverage Ratio as Disclosure Package and any further amendment or supplement thereto made by the Republic do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the last day circumstances under which they were made, not misleading, the Prospectus and any further amendment or supplement thereto made by the Republic do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the most recent Fiscal Quarter for circumstances under which financial statements have been delivered they were made, not misleading; and that all statistical information in the Registration Statement and any further amendment or supplement thereto is presented on a basis consistent with public official documents of the Republic; provided, however, that the foregoing certification shall not apply to the Lenders pursuant to Section 5.1(b)statements in or omissions from the Registration Statement, determined on the Disclosure Package taken as a pro forma basis whole with the Prospectus or any amendment or supplement thereto made in accordance reliance upon and in conformity with Section 6.8(d) after giving effect information furnished to the proposed Credit ExtensionRepublic in writing by you expressly for use in the Registration Statement, shall not exceed 5.00:1.00 in respect the Disclosure Package or the Prospectus or any amendment or supplement thereto.
(l) Subsequent to the execution and delivery of Fiscal Quarters ending this Agreement and on or prior to December 25the Commencement Date or the Settlement Date there shall not have occurred any of the following: (i) in the opinion of the Dealer Managers, 2004a change in Uruguayan, United States or international financial, political or economic conditions as would in the Dealer Managers’ reasonable judgment be likely to prejudice materially the success of the Offer; and (ii) a suspension or material limitation of trading in (a) securities generally on the New York Stock Exchange or the London Stock Exchange or (b) the debt securities of the Republic in the United States; (iii) 4.75:1.00 a major disruption in respect the settlement or clearance of subsequent Fiscal Quarters. Any Agent debt securities services in the United States and such event shall continue until at least the business day preceding the Settlement Date; or Requisite Lenders (iv) a banking moratorium declared by either Federal or New York state or Uruguayan authorities and any such event shall be entitled, but not obligated to, request and receive, prior make it impractical to proceed with the Offer.
(m) The Republic shall have furnished to the making of any Credit ExtensionDealer Managers on the Settlement Date such further information, additional information certificates and documents and agreements as the Dealer Managers may reasonably satisfactory to request.
(n) On the requesting party confirming Settlement Date, the satisfaction of Republic shall tender the 2045 Bonds for delivery. The Dealer Managers may waive at their sole discretion and upon terms as they deem appropriate any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesconditions set forth above.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender to make any Loanfund the Term Loans, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including fund the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are initial Revolving Loan is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the date hereof of the following conditions precedent:
(ia) Administrative Agent Lender shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as Schedule 17(a) (the case may be"Closing Document List");
(iib) after making Since the Credit Extensions requested on such Credit Date, date of the Total Utilization most recent financial statements of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date Borrower delivered to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit DateLender, no event shall have occurred and which has had or could reasonably be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or expected to have a DefaultMaterial Adverse Effect on any Obligor, as determined by Lender in its sole discretion;
(vc) Lender shall have received payment in full of all fees and expenses payable to it by Borrower or any other Person in connection herewith, on or before disbursement of the initial Loans hereunder;
(d) Lender shall have determined that immediately after giving effect to (A) the making of the initial Loans, including without limitation the Term Loans and the Revolving Loans, if any, requested to be made on the date hereof, (B) the payment of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Noticefees due upon such date, and such other documents (C) the payment or information as Issuing Bank may reasonably require reimbursement by Borrower of Lender for all closing costs and expenses incurred in connection with the issuance transactions contemplated hereby, and assuming all of such Letter Borrower's trade payables and outstanding debt which remain unpaid more than sixty (60) days after the due dates thereof on the date of Creditdetermination, are paid by drawing additional Revolving Loans, on a pro forma basis, availability of Borrower to borrow additional Revolving Loans shall not be less than Three Hundred Thousand and no/100 Dollars ($300,000.00); and
(vie) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings Lender shall have delivered a Compliance Certificate representing received proof, in form and warranting substance acceptable to Lender, that Borrower has fully satisfied all state, federal and otherwise demonstrating to the satisfaction of Administrative Agent thatlocal income, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements payroll and other tax obligations.
(f) The Obligors shall have been executed and delivered to Lender all such other documents, instruments and agreements which Lender determines are reasonably necessary to consummate the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancestransactions contemplated hereby.
Appears in 1 contract
Conditions Precedent. The obligation amendments set forth in Article 1 of this Amendment shall not become effective until each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedenthas been satisfied:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties 3.1 This Amendment shall have been true executed by a duly authorized officer on behalf of the Company, and correct in all material respects on and as the acknowledgements at the end of such earlier date;
(iv) as of such Credit Date, no event this Amendment shall have occurred and be continuing or would result from the consummation been executed by a duly authorized officer on behalf of each of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before Guarantors, in the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Noticerespective spaces so provided, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings this Amendment shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant Bank.
3.2 Such other documents, and evidence of completion of such other matters, as the Bank may reasonably request shall have been duly executed, if applicable, and delivered to Section 5.1(bthe Bank. The Company and the Guarantors previously have informed the Bank that Events of Default have occurred due to breaches of Sections 5.2(b) and 5.2(c) of the Credit Agreement as of the end of the Parent Guarantor’s fiscal quarters ended on or about July 18, 2003 and October 10, 2003 (collectively, the “Known Defaults”). So long as any Default or Event of Default has occurred and is continuing unwaived or would be caused thereby, determined payment of interest on Subordinated Debt is prohibited. Pursuant to the Fifth Amendment to the Credit Agreement referenced above, the Bank waived the Known Defaults subject to certain conditions, including without limitation that on or before December 31, 2003, the Company have consummated the sale of the Sterling Heights Property (as defined in such Fifth Amendment) and applied a pro forma basis portion of the proceeds thereof to the payment of interest on the Rights Offering Sub Debt (as defined in such Fifth Amendment) in accordance with Section 6.8(d5.2(h) after giving effect of the Credit Agreement (as amended by such Fifth Amendment) or have through some other means of raising the necessary funds consented to by the Bank in its sole discretion paid all accrued and unpaid interest on the Rights Offering Sub Debt due December 31, 2003 (the “Prior Liquidity Event Condition”). The Company and the Guarantors now have requested that the Bank waive the Known Defaults subject to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; terms and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitledconditions set forth herein, but not obligated to, request and receive, prior subject to the making Prior Liquidity Event Condition. Pursuant to such request, the Bank hereby waives the Known Defaults and agrees that the Company may pay accrued and unpaid interest on the Rights Offering Sub Debt due December 31, 2003 in an amount not exceeding $135,000, provided that (i) the Amendment Date (as defined in this Sixth Amendment) shall have occurred and (ii) the Bank shall not be deemed hereby to have waived any other Defaults or Events of Default, or such provisions of the Credit Agreement as of any other compliance times, or any other provisions of the Credit ExtensionAgreement. The Company and the Guarantors acknowledge and agree that the waiver contained herein is a limited waiver, additional information reasonably satisfactory limited to the requesting party confirming specific Known Defaults described above and subject to the satisfaction conditions described in clauses (i) and (ii) of the immediately preceding sentence. Such waiver (a) shall not waive any other term, covenant or agreement of the Credit Agreement or any other Loan Document, (b) shall not be deemed to be a waiver of any other term, covenant or agreement of the foregoing ifCredit Agreement or any other Loan Document, and (c) shall not be deemed to prejudice any present or future right or rights which the Bank now has or may have thereunder. Additionally, the waiver set forth in the good faith judgment this Article IV shall not be deemed to waive any Default or Event of such Agent Default, whether now existing or Requisite Lender such request is warranted under the circumstanceshereafter existing, whether known, unknown or otherwise, except as specifically set forth herein.
Appears in 1 contract
Conditions Precedent. 13.1 The obligation of each Lender the Purchaser to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including consummate the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are transactions herein contemplated is subject to the satisfaction, or waiver in accordance with Section 10.5, fulfillment of each of the following conditions precedentprecedent at the times stipulated:
(ia) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, that the representations and warranties of the Vendor contained herein and in the other Credit Documents shall be are true and correct on and as at the Closing Date with the same force and effect as if such representations and warranties were made as at the Closing Date, except as may be in writing disclosed to and approved by the Purchaser;
(b) that all material respects the terms, covenants, conditions, agreements, and obligations hereunder on the part of the Vendor to be performed or complied with at or prior to the Closing Date, including in particular the Vendor's obligation to deliver the documents and instruments herein provided for in Clause 14, have been performed and complied with as at the Closing Date;
(c) that between the date hereof and the Closing Date no change, event, or circumstance has occurred which materially adversely affects the Business Assets or the prospects, operation, or condition of the Business or which, significantly reduces the value of the Business or the Business Assets to the Purchaser;
(d) that between the date hereof and the Closing Date there has not been any substantial loss, damage, or destruction, whether or not covered by insurance, to any of the Business Assets;
(e) no legal or regulatory action or proceeding will be pending or threatened by any person to enjoin, restrict or prohibit the purchase and sale of the Business Assets contemplated hereby;
(f) that at the Closing Date, there will have been obtained from all appropriate federal, state, municipal or other governmental or administrative bodies such licenses, pen-nits, consents, approvals, certificates, registrations and authorizations as are required to be obtained by the Vendor to permit the change of ownership of the Business Assets contemplated hereby, and all notices, consents and approvals with respect to the transfer or assignment of the Material Contracts, including, without limitation those described in Schedule "4" hereof have been obtained;
(g) that at the Closing Date, the Vendor will have given or obtained the notices, consents and approvals described in Schedule "11" - Consents, in each case in form and substance satisfactory to the Purchaser, acting reasonably; The foregoing conditions of this Clause 13.1 are for the exclusive benefit of the Purchaser and may be waived in whole or in part by the Purchaser at any time. If any of the conditions contained in this Clause 13.1 will not be performed or fulfilled at or prior to the Closing Date to the satisfaction of the Purchaser, acting reasonably, the Purchaser, may, by notice to the Vendor, terminate this Agreement and the obligations of the Vendor and the Purchaser under this agreement, provided that the Purchaser may also bring an action pursuant to Clause 10.3 against the Vendor for damages suffered by the Purchaser where the non-performance or non-fulfillment of the relevant condition is as a result of a breach of covenant, representation or warranty by the Vendor.
13.2 The obligation of the Vendor to consummate the transactions herein contemplated is subject to the fulfillment of each of the following conditions precedent at the times stipulated:
(a) that the representations and warranties of the Purchaser contained herein are true and correct on and as of that Credit the Closing Date to with the same extent force and effect as though made on and as of that date, except to the extent if such representations and warranties specifically relate were made as at the Closing Date, except as may be in writing disclosed to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier dateapproved by the Vendor;
(ivb) as of such Credit Datethat all terms, no event shall have occurred covenants, conditions, agreements, and be continuing or would result from obligations hereunder on the consummation part of the applicable Credit Extension that would constitute an Event Purchaser to be performed or complied with at or prior to the Closing, including in particular the Purchaser's obligation to deliver the documents and instruments herein provided for in Clause 15, have been performed and complied with as at the Closing.
13.3 The foregoing conditions of Default this Clause 13.2 are for the exclusive benefit of the Vendor and may be waived in whole or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required in part by the applicable Issuance Notice, and such other documents Vendor at any time. If any of the conditions contained in this Clause 13.2 will not be performed or information as Issuing Bank may reasonably require in connection with fulfilled at or prior to the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Datethe Vendor acting reasonably, the Leverage Ratio as Vendor may, by notice to the Purchaser, terminate this Agreement and the obligations of the last day Vendor and the Purchaser under this Agreement, provided that the Vendor may also bring an action pursuant to Clause 11.2 against the Purchaser for damages suffered by it where the non-performance or non-fulfillment of the most recent Fiscal Quarter for which financial statements have been delivered relevant condition is as a result of a breach of covenant, representation or a warranty by the Purchaser.
13.4 The obligation of both the Purchaser and the Vendor to consummate the transactions herein contemplated is subject to the Lenders pursuant to Section 5.1(bsettlement, execution and delivery of an employment and confidentiality agreement between the Purchaser and the Vendor in the form of Schedule 12 Employment Agreement (the "Employment Agreement"), determined on a pro forma basis . The condition in accordance with Section 6.8(d) after giving effect to this Clause 13.4 is for the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any mutual benefit of the foregoing if, in Purchaser and the good faith judgment Vendor and may only be waived by both of such Agent or Requisite Lender such request is warranted under the circumstancesthem together and not by one of them unilaterally.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment No. 4 shall become effective as of the first date (the “Amendment No. 4 Effective Date”) when each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date conditions set forth in this Section 6 shall have been satisfied; provided that Sections 2(c) and 2(d) and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to amendments contemplated in Section 3 hereof shall be effective immediately after the satisfaction, or waiver in accordance with Section 10.5, consummation of the following conditions precedent2018 Refinancing:
(ia) The Administrative Agent shall have received a fully (i) an executed and delivered Funding Notice or Issuance Noticecopy of this Amendment No. 4, as the case may be;
(ii) after making an executed copy of the Credit Extensions requested on such Credit DateNew Intercreditor Agreement, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) an executed copy of the Second Lien Credit Agreement, (iv) an executed copy of the Intercompany Subordination Agreement and (v) an executed copy of the Exchange Agreement (as defined in the Second Lien Credit Agreement).
(b) All costs, fees and expenses (including, without limitation, legal fees and expenses) contemplated and to the extent required by the Credit Agreement, the Engagement Letter and any other letter agreement between the Borrower and any Arranger relating to the transactions contemplated hereby, and which are payable to the Refinancing Arranger or any other Arranger (or the 2018 Refinancing Term Lenders or the 2018 Upsize Term Lender) or the Administrative Agent shall have been paid to the extent due. All accrued interest on, and any amounts owing under Section 2.13 of such the Credit Agreement with respect to, the Initial Term Loans outstanding immediately prior to the Amendment No. 4 Effective Date, whether or not due and payable, shall have been paid in full.
(c) No Default or Event of Default shall have occurred or be continuing, or would occur immediately after giving effect to the incurrence of the 2018 Refinancing Term Loans and the 2018 Upsize Term Loans and the other transactions contemplated by this Amendment No. 4.
(d) Each of the representations and warranties contained herein and made by any Loan Party set forth in the other Credit Documents Section 5 hereof shall be true and correct in all material respects (provided that, any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of that Credit the Amendment No. 4 Effective Date to with the same extent effect as though made on and as of that such date, except to the extent such representations and warranties specifically expressly relate to an earlier date, date (in which case such representations and warranties shall have been be true and correct in all material respects (or if any such representation and warranty is qualified by “materiality,” “material adverse effect” or similar language, shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of such earlier date;).
(ive) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, The Administrative Agent shall have received all other information required a Borrowing Request meeting the requirements of Section 2.03 of the Credit Agreement for the 2018 Refinancing Term Loans and the 2018 Upsize Term Loans.
(f) The Administrative Agent shall have received a certificate of the Borrower, dated the Amendment No. 4 Effective Date, executed by a Responsible Officer of the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection Borrower certifying compliance with the issuance requirements set forth in clauses (c) and (d) of such Letter of Credit; andthis Section 6.
(vig) in On the case Amendment No. 4 Effective Date, the Administrative Agent shall have received a customary opinion of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇Ropes & ▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)LLP, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating counsel to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered Loan Parties addressed to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.the
Appears in 1 contract
Sources: First Lien Credit Agreement
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including fund the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are initial Revolving Loan is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5on or before the date hereof, of the following conditions precedent:
(ia) Administrative Agent Lender shall have received a fully four (4) originals of each of the agreements (other than the Subordination Agreements and the Account Control Agreements for the deposit accounts listed therein), opinions, reports, approvals, consents, certificates and other documents set forth on the closing document list attached hereto as EXHIBIT C (the "CLOSING DOCUMENT LIST") in each case in form and substance satisfactory to Lender (other than Notes, of which Lender shall receive one (1) original) executed by Borrower and delivered Funding Notice or Issuance Noticeother required Persons, as the case may beapplicable;
(iib) after making Lender shall have received such financial statements, reports, certifications, and other operational information required to be delivered under this Agreement, including without limitation an initial Borrowing Base Certificate calculating the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effectBorrowing Base;
(iiic) All of the obligations of Borrower to any prior lender (other than Subordinated Debt) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date effect immediately prior to the same extent as though made Closing Date will be performed and paid in full from the proceeds of the initial advances under the initial Loans on the Closing Date and as all Liens of that date, except to the extent any such representations and warranties specifically relate to an earlier date, prior lender on any property of Borrower in which case respect thereof will be terminated immediately upon such representations and warranties shall have been true and correct in all material respects on and as of such earlier datepayment;
(ivd) Lender shall have received evidence satisfactory to it that the insurance policies required under SECTION 5 are in full force and effect, together with written evidence showing loss payable or additional insured clauses or endorsements in favor of Lender as required under such section;
(e) Lender shall have received each of such Credit Datethe agreements, opinions, reports, approvals, consents, certificates and other documents set forth on the Closing Document List in each case in form and substance satisfactory to Lender;
(f) Since March 31, 2004, no event shall have occurred and which has had or could reasonably be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or expected to have a DefaultMaterial Adverse Effect on any Obligor, as determined by Lender in its reasonable credit judgment, determined in good faith;
(vg) Lender shall have received payment in full of all fees and expenses payable to it by Borrower or any other Person in connection herewith, on or before disbursement of the date initial Loans hereunder, including, without limitation, payment of issuance of any Letter of Credit, Administrative Agent all underwriting fees as agreed to by the parties;
(h) Lender shall have received all other information required by determined that immediately after giving effect to (A) the applicable Issuance Noticemaking of the initial Loans, and (B) the payment of all fees due upon such other documents date and (C) the payment or information as Issuing Bank may reasonably require reimbursement by Borrower of Lender for all closing costs and expenses incurred in connection with the issuance transactions contemplated hereby, Borrower has Excess Availability of such Letter not less than Five Hundred Thousand Dollars ($500,000); PROVIDED that on the Closing Date (and for purposes of Credit; andthe Closing Date calculation only) the calculation for determining Excess Availability shall include all of Borrowers' cash on deposit in Borrowers' deposit accounts;
(vii) The Obligors shall have executed and delivered to Lender all such other documents, instruments and agreements which Lender determines are reasonably necessary to consummate the transactions contemplated hereby;
(j) Lender shall have reviewed and found acceptable, in the case of its sole discretion, a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan third-party background check on the ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay and ▇▇▇▇ ▇▇▇▇▇▇ Acquisition Financing Requirements), if ;
(Ak) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings Lender shall have delivered reviewed the results of, and found such results acceptable, in its sole discretion, a Compliance Certificate representing takedown audit including verification of payment of all due and warranting owing taxes;
(l) Lender shall have received the results of a roll-forward "take-over" audit, which shall be satisfactory to Lender in its sole discretion;
(m) There is no material default in any of the Borrower's obligations under any contract to which Borrower is a party;
(n) Borrower shall be in compliance with all applicable laws;
(o) Lender shall have received an opinion from Borrower's counsel, in form and otherwise demonstrating substance reasonably acceptable to the Lender;
(p) Borrower shall have established and maintained in its name all Lockboxes as set forth in Section 8 to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements Lender and Borrower shall have been delivered to the Lenders pursuant Lender, with respect to Section 5.1(b)each Deposit Account maintained by Borrower, determined on a pro forma basis deposit account control agreement in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; form and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably substance satisfactory to the requesting party confirming Lender, executed by the satisfaction of any financial institution at which such Deposit Account is maintained;
(q) Borrower shall have delivered all due diligence materials to the Lender as Lender has requested;
(r) Lender shall have received an executed Collection Custodial Agreement from an officer of the foregoing ifBorrowers in form and substance acceptable to Lender;
(s) BOF shall have received (i) the Term Loan Agreement, and (ii) the Warrant Agreement, fully executed and each in form and substance satisfactory to BOF;
(t) Crdentia shall have received on or before the Closing Date a cash capital contribution in the good faith judgment amount of such Agent or Requisite $1,250,000;
(u) Lender such request is warranted under shall have received satisfactory evidence that Borrower has secured the circumstancesservices of a third-party payroll tax service provider.
Appears in 1 contract
Conditions Precedent. The obligation Conditions Precedent in favor of each Lender China Health
7.1 China Health's obligations to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including carry out the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, transactions contemplated hereby are subject to the satisfaction, or waiver in accordance with Section 10.5, fulfillment of each of the following conditions precedentprecedent on or before the Closing:
(a) all documents or copies of documents required to be executed and delivered to China Health hereunder will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by Henan Furen Huaiqingtang Pharmaceutical or the Henan Furen Huaiqingtang Pharmaceutical Shareholders at or prior to the Closing will have been complied with or performed;
(c) title to the Henan Furen Huaiqingtang Pharmaceutical Shares held by the Henan Furen Huaiqingtang Pharmaceutical Shareholders and to the Henan Furen Huaiqingtang Pharmaceutical Assets will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever, save and except as disclosed herein, and the Henan Furen Huaiqingtang Pharmaceutical Shares shall be duly transferred to China Health;
(d) subject to Article 8 hereof, there will not have occurred
(i) Administrative Agent shall have received a fully executed any material adverse change in the financial position or condition of Henan Furen Huaiqingtang Pharmaceutical, its liabilities or the Henan Furen Huaiqingtang Pharmaceutical Assets or any damage, loss or other change in circumstances materially and delivered Funding Notice adversely affecting Henan Furen Huaiqingtang Pharmaceutical, the Henan Furen Huaiqingtang Pharmaceutical Business or Issuance Noticethe Henan Furen Huaiqingtang Pharmaceutical Assets or Henan Furen Huaiqingtang Pharmaceutical's right to carry on the Henan Furen Huaiqingtang Pharmaceutical Business, as other than changes in the case may be;ordinary course of business, none of which has been materially adverse, or
(ii) after making any damage, destruction, loss or other event, including changes to any laws or statutes applicable to Henan Furen Huaiqingtang Pharmaceutical or the Credit Extensions requested on such Credit DateHenan Furen Huaiqingtang Pharmaceutical Business (whether or not covered by insurance) materially and adversely affecting Henan Furen Huaiqingtang Pharmaceutical, the Total Utilization of Revolving Commitments shall not exceed Henan Furen Huaiqingtang Pharmaceutical Business or the Revolving Commitments then in effect;Henan Furen Huaiqingtang Pharmaceutical Assets; and
(iiie) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties transactions contemplated hereby shall have been true approved by all other regulatory authorities having jurisdiction over the subject matter hereof, if any. Waiver by China Health
7.2 The conditions precedent set out in the preceding section are inserted for the exclusive benefit of China Health and correct any such condition may be waived in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no whole or in part by China Health at or prior to the Closing by delivering to Henan Furen Huaiqingtang Pharmaceutical a written waiver to that effect signed by China Health. In the event shall have occurred and be continuing or would result from that the consummation of conditions precedent set out in the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) preceding section are not satisfied on or before the date of issuance of any Letter of CreditClosing, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders China Health shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted released from all obligations under the circumstancesthis Agreement.
Appears in 1 contract
Sources: Securities Offering Agreement (China Health Holding, Inc.)
Conditions Precedent. The obligation of each Lender A Tax Indemnitee shall not be required to make take any Loan, administrative or Issuing Bank judicial action with respect to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedenta Claim unless prior thereto:
(i) Administrative Agent the Lessee shall have received a fully executed agreed in writing to pay such Tax Indemnitee on demand all reasonable out-of-pocket expenses which such Tax Indemnitee may incur in connection with contesting such Claim and delivered Funding Notice or Issuance Noticeacknowledged, as in writing, the case may beLessee's liability hereunder;
(ii) after making if such contest shall involve the Credit Extensions requested payment of the Claim, Lessee shall advance the amount thereof (to the extent indemnified hereunder) plus interest, penalties, and additions to tax with respect thereto that are required to be paid prior to the commencement of such contest on an interest-free after-Tax basis to such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;Tax Indemnitee.
(iii) as of such Credit Datethe action to be taken will not, the representations and warranties contained herein and in the other Credit Documents shall be true and correct reasonable opinion of the Tax Indemnitee, result in all a material respects risk of a sale, forfeiture, loss of or the creation of any lien on and as of that Credit Date to the same extent as though made on and as of that date, Engine except to if the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties Lessee shall have been true and correct in all material respects on and as of adequately bonded any lien that results from such earlier date;risks or otherwise made adequate provision reasonably satisfactory to such Tax Indemnitee nor subject the Tax Indemnitee to criminal prosecution; and
(iv) as of such Credit Date, no event Termination Event or Potential Termination Event shall have occurred and be continuing, unless Lessee has provided security for its obligations hereunder by advancing to such Tax Indemnitee, before proceeding or continuing or would result from with such contest, the consummation amount of the applicable Credit Extension that would constitute Tax being contested plus any interest and penalties and an Event amount estimated in good faith by such Tax Indemnitee for expenses and Lessor shall be receiving all amounts of Default or a Default;Rent in full when due, without reduction by reason of such Tax; and
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent Tax Indemnitee shall have received all other information required by a legal opinion (at the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as expense of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(dLessee) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information from counsel reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender Tax Indemnitee indicating that a reasonable basis for such request is warranted under the circumstancescontest exists.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender Agent and Lenders to make any fund the Term Loan, or Issuing Bank to fund the initial Revolving Loan, and to issue any or cause to be issued the initial Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the date hereof of the following conditions precedent:
(ia) Administrative Agent shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as Schedule 17(a) (the “Closing Document List”) in each case may bein form and substance reasonably satisfactory to Lender;
(iib) after making the Credit Extensions requested on such Credit DateSince May 4, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date2004, no event shall have occurred and which has had or could reasonably be continuing expected to have a Material Adverse Effect on any Obligor, as determined by Agent or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a DefaultRequisite Lenders in their Permitted Discretion;
(vc) Agent shall have received payment in full of all fees and expenses payable to it by Borrower or any other Person in connection herewith, on or before disbursement of the initial Loans hereunder;
(d) Agent shall have determined that immediately after giving effect to (A) the making of the initial Loans, including without limitation the Term Loan and the Revolving Loans, if any, requested to be made on the date of hereof, (B) the issuance of any the initial Letter of Credit, Administrative if any, requested to be made on such date, (C) the payment of all fees due upon such date and (D) the payment or reimbursement by Borrower of Agent shall have received for all other information required by the applicable Issuance Notice, closing costs and such other documents or information as Issuing Bank may reasonably require expenses incurred in connection with the issuance transactions contemplated hereby, Borrower has Excess Availability of such Letter of Creditnot less than Ten Million and No/100 Dollars ($10,000,000.00); and
(vie) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings The Obligors shall have delivered a Compliance Certificate representing executed and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to Agent all such other documents, instruments and agreements which Agent determines are reasonably necessary to consummate the Lenders pursuant to Section 5.1(b)transactions contemplated hereby, determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extensionincluding, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; without limitation an Amended and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesRestated Continuing Unconditional Guaranty from Holdings.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are ▇’s obligation to provide the Additional Financial Accommodations to Borrowers is subject to the satisfaction, or waiver in accordance with Section 10.5, full and timely performance of the following conditions precedent:
3.1. Borrowers executing and delivering, or causing to be executed and delivered to Lender, the following documents, each of which shall be in form and substance acceptable to Lender:
(i) Administrative Agent shall have received a fully duly executed and delivered Funding Notice or Issuance Notice, as the case may beoriginal of this Third Amendment;
(ii) after making a duly executed original 2024 Delayed Draw Term Note executed and delivered by Borrowers to Lender in the Credit Extensions requested on such Credit Date, principal amount of the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect2024 Delayed Draw Term Loan Commitment;
(iii) as of such Credit Date, the representations a duly executed original 2024 Term Note executed and warranties contained herein and delivered by Borrowers to Lender in the other Credit Documents shall be true and correct in all material respects on and as principal amount of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date2024 Term Loan Commitment;
(iv) as an original Company General Certificate of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Defaulteven date herewith duly executed by each Loan Party to ▇▇▇▇▇▇;
(v) on or before a Disbursement Request executed and delivered by Borrowers to ▇▇▇▇▇▇ directing the date disbursement of issuance the proceeds of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit2024 Term Loan; and
(vi) in such other agreements, documents and instruments as Lender may reasonably request.
3.2. No Event of Default or Default exists under the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent thatAgreement, as of such Credit Dateamended by this Third Amendment, or the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered other Loan Documents;
3.3. No claims, litigation, arbitration proceedings or governmental proceedings not disclosed in writing to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, Lender prior to the making date of hereof shall be pending or known to be threatened against any Borrower and no known material development not so disclosed shall have occurred in any claims, litigation, arbitration proceedings or governmental proceedings so disclosed which in the opinion of Lender is likely to materially or adversely affect the financial position or business of any Credit Extension, additional information reasonably satisfactory to Borrower or the requesting party confirming the satisfaction capability of any Borrower to pay its obligations and liabilities to Lender; and
3.4. There shall have been no material or adverse change in the business, financial condition or results of operations since the date of Borrowers’ most recently delivered financial statements to Lender.
3.5. The repayment in full of the foregoing ifTerm Loan, in the good faith judgment Delayed Draw Term Loan and the principal balance of such Agent or Requisite Lender such request is warranted under the circumstancesRevolving Loan from the proceeds of the 2024 Term Loan.
Appears in 1 contract
Sources: Loan and Security Agreement (Kingsway Financial Services Inc)
Conditions Precedent. The Lessor shall have no obligation to purchase any Item of Equipment and to lease the same to Lessee unless each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
are fulfilled to the satisfaction of Lessor: (i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing which is (or with notice or lapse of time or both would result from the consummation of the applicable Credit Extension that would constitute become) an Event of Default or Event of Loss has occurred and is continuing; (ii) no material adverse change in the financial condition of Lessee (or of any Guarantor) which, in Lessor's opinion, would impair the ability of Lessee to pay and perform its obligations under this Lease (or of any Guarantor to pay and perform such obligations) has occurred since the date specified as the Financial Condition Reference Date on the Related Exhibit A for such Item; (iii) such Item of Equipment is specifically identified by manufacturer and model number on the Related Exhibit A or is otherwise reasonably acceptable to Lessor, and is free of all Liens, other than any Lien specifically excepted in Section 15 hereof; (iv) the Acceptance Date for such Item of Equipment is a Default;
date within the Acquisition Period specified on the Related Exhibit A for such Item and Lessee has executed and delivered to Lessor the Related Exhibit A for such Item; (v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance Acquisition Cost of such Letter Item of CreditEquipment, when added to the total Acquisition Cost of all Equipment of the type to which such Item relates and which has been leased hereunder, or ordered by Lessor for lease hereunder, will not be such an amount so as to cause the Maximum Acquisition Cost specified on the Related Exhibit A for such Item to be exceeded; and
(vi) in Lessor has received an invoice for such Item of Equipment from the case seller thereof, approved for payment by Lessee, showing Lessor as the purchaser of such Item, or, if Lessee is the seller of such Item, a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date of sale for such Item from Lessee to Lessor in an aggregate principal amount not form and substance satisfactory to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)Lessor, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed evidence, satisfactory to Lessor, of Lessee's payment to the original seller of such Item; (vii) Lessor has received a Lease Supplement for such Item, duly executed by Lessee, and not yet consummateddated the Acceptance Date for such Item; (viii) exceeds $20,000,000if such Item of Equipment is subject to motor vehicle titling and registration laws, then Lessor has received a copy of the Chief Financial Officer application for certificate of Holdings title therefor, as filed with, and bearing the filing stamp of, the appropriate department of motor vehicles or other appropriate state authority, and a copy of the manufacturer's statement or certificate of origin therefor, reflecting Lessor or its nominee as owner and whomever Lessor shall have delivered a Compliance Certificate representing designated (if any) as first lienholder; (ix) all licenses, registrations, permits, consents and warranting approvals required by Federal, state or local laws or by any governmental body, agency or authority in connection with Lessor's ownership of, and otherwise demonstrating the delivery, acquisition, installation, use, and operation of, each Item of Equipment shall have been obtained to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004Lessor; and (iiix) 4.75:1.00 Lessor shall have received the documents set forth on Schedule I hereto in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request form and receive, prior to the making of any Credit Extension, additional information substance reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesLessor.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment shall become effective on the later to occur of (a) the date hereof, and (b) the Business Day on which each Lender to make any Loanof the following conditions precedent has been satisfied (the “Effective Date”):
(i) ▇▇▇▇▇ shall have received counterparts hereof, or Issuing Bank to issue any duly executed by each of the parties hereto;
(ii) ▇▇▇▇▇ shall have received counterparts of the Fifth Amended and Restated Fee Letter of Crediteven date herewith duly executed by each of the parties thereto, on any Credit together with payment in full of the upfront amendment fee described in paragraph #1 thereof;
(iii) ▇▇▇▇▇ shall have received a certificate of the Secretary of the Seller certifying as to the following:
A. Since October 3, 2016 (the “Closing Date”), there have been no amendments to the Certificate of Formation of the Seller, and no such amendment or other document has been authorized by the Board of Directors of Sensient Receivables LLC or by Sensient Colors LLC, the sole member of Sensient Receivables LLC;
B. As of the Effective Date, including the Seller remains in good standing in the State of Delaware;
C. Since the Closing Date, there have been no amendments to the Seller’s LLC Agreement or, if there have been, attaching a true and correct copy of the LLC Agreement as so amended;
D. Attached to such certificate are true and correct copies of resolutions (the “Resolutions”) duly authorized by the Board of Directors of the Seller by unanimous written consent on August 25, 2022, authorizing the execution and delivery of this Amendment and the increase in the Facility Limit contemplated hereby, which Resolutions remain unaltered and in full force and effect as of the Effective Date; and
E. Attached thereto is a list of certain officers of the Seller who duly hold office on the Effective Date and are authorized on behalf of the Seller to execute this Amendment and the other documents, reports and notices pursuant to the Purchase Agreement, and the signature (or copy thereof) set forth beside each person’s name is genuine.
(iv) Each of the representations and warranties contained in Section 5 of this Amendment shall be true and correct as of the Effective Date; and
(v) Payment in full of all reimbursable legal fees and disbursements of the Purchaser’s counsel in connection with the Transaction Documents and this Amendment for which the Seller has been invoiced by ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Sensient Technologies Corp)
Conditions Precedent. This Amendment will not become effective until -------------------- all corporate actions of Borrower and each of the Subsidiary/Debtors taken in connection herewith and the transactions contemplated hereby shall be satisfactory in form and substance to the Bank, and each of the following conditions precedent shall have been satisfied, all of which must occur on or before January 2, 2002:
(a) Bank has received counterparts of this Amendment duly executed and duly delivered by Bank, Borrower, and each other party named on the signature page below.
(b) All fees and expenses, including reasonable legal and other professional fees and expenses incurred on or prior to the date of this Amendment by the Bank, including without limitation the fees and expenses of legal counsel and financial advisors to the Bank, shall have been paid to the extent that same have been billed.
(c) The obligation Bank shall have received a certificate of the Borrower certifying as to the accuracy, after giving effect to this Amendment, of the representations and warranties set forth in the Loan Agreement, the other Loan Documents and this Amendment, that there exists no Default or Potential Default after giving effect to this Amendment, and that the execution, delivery and performance of this Amendment will not cause a Default or Potential Default.
(d) The Bank shall have received such other documents, instruments and certificates, in form and substance reasonably satisfactory to the Bank, as the Bank shall deem necessary or appropriate in connection with this Amendment and the transactions contemplated hereby, including without limitation copies of resolutions of the boards of directors of each Lender of Borrower and each Subsidiary/Debtor which is a party to make the documents contemplated by this Amendment.
(e) The Bank shall have received an amendment fee in the principal amount of $25,000, plus all accrued and unpaid interest due under the Term Loan through December 31, 2001.
(f) The Bank shall have received (i) a true and correct copy of any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including and all agreements between the Effective Date Borrower and the ▇▇▇▇▇ ▇▇▇▇▇▇ Acquisition Closing Date, are subject upon terms and conditions satisfactory to the satisfaction, or waiver in accordance with Section 10.5, Bank addressing payment of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date amounts due to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇ ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not pursuant to exceed $10,000,000 used to pay that certain Stock Purchase Agreement dated December 19, 1997, between the Borrower, ▇▇▇▇▇ ▇▇▇▇▇▇ Acquisition Financing Requirements)and Hereford Haven, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000Inc., then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iiiii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request a true and receive, prior to the making correct copy of any Credit Extensionand all agreements between the Borrower and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, additional information reasonably upon terms and conditions satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesBank.
Appears in 1 contract
Conditions Precedent. Mutual Conditions Precedent
7.1 The obligation respective obligations of each Lender the Parties to make any Loanconsummate the transactions contemplated hereby, or Issuing Bank to issue any Letter and in particular the completion of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing DateAmalgamation, are subject to the satisfaction, on or waiver in accordance with Section 10.5before the Effective Time or such other time specified, of the following conditions precedentconditions:
(a) the DWR Shareholders will have approved or consented to such matters as either DWR or TAI, acting reasonably, will consider necessary or desirable in connection with the Amalgamation in the manner required thereby;
(b) the shareholders of TAI will have approved the Amalgamation, if required, and approved or consented to such other matters as either TAI or DWR, acting reasonably, will consider necessary or desirable in connection with the Amalgamation in the manner required thereby;
(c) all governmental, court, regulatory, stock exchange, third person and other approvals, consents, waivers, orders, exemptions, agreements and all amendments and modifications to agreements, indentures and arrangements which TAI or DWR will consider necessary or desirable in connection with the Amalgamation and not otherwise specifically described in this Agreement will have been obtained in form satisfactory to TAI and DWR, acting reasonably;
(d) there will have been no action taken under any Applicable Laws or by any government or governmental or regulatory authority which:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice makes it illegal or Issuance Noticeotherwise directly or indirectly restrains, as enjoins or prohibits the case may be;completion of the Amalgamation; or
(ii) after making results or could reasonably be expected to result in a judgment, order, decree or assessment of damages, directly or indirectly, relating to the Credit Extensions requested Amalgamation which is, or could be, a Material Adverse Effect on such Credit DateTAI or DWR, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effectrespectively;
(iiie) as the distribution of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date TAI Common Shares pursuant to the same extent as though made on Amalgamation will be exempt from the prospectus and as registration requirements of that dateApplicable Securities Laws by virtue of applicable exemptions under Applicable Securities Laws, except subject however to the extent such representations and warranties specifically relate Escrow Requirements applicable to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as Persons who are considered Principals or Related Persons of such earlier datethe Resulting Issuer after Listing;
(ivf) as there are reasonable grounds for believing that no creditor of such Credit Date, no event either DWR or TAI will be materially prejudiced by the Amalgamation;
(g) the Effective Date of the Amalgamation shall have occurred and on or prior to the Outside Date; and
(h) there will not be continuing in force any order or would result from decree restraining or enjoining the consummation of the applicable Credit Extension that would constitute an Event transactions contemplated by this Agreement and the Amalgamation. The foregoing conditions are for the mutual benefit of Default TAI on the one hand and DWR on the other hand and may be waived, in whole or a Default;
(v) in part, jointly by the Parties at any time. If any of the foregoing conditions are not satisfied or waived on or before the date of issuance of Effective Date then a Party may terminate this Agreement by written notice to the other Parties in circumstances where the failure to satisfy any Letter of Creditsuch condition is not the result, Administrative Agent shall have received all other information required by the applicable Issuance Noticedirectly or indirectly, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter terminating Party’s breach of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesthis Agreement.
Appears in 1 contract
Sources: Amalgamation Agreement
Conditions Precedent. The obligation Acquiror, the Acquiror Sub and the Company The respective obligations of the Acquiror, the Ac- quiror Sub and the Company to effect the transactions contem- plated by this Agreement shall be subject to satisfaction of the following conditions at or prior to the Effective Time.
(a) All corporate action necessary to authorize the execution and delivery of this Agreement and consummation of the transactions contemplated hereby shall have been duly and validly taken by the Acquiror and the Company, including ap- proval by the requisite vote of the respective shareholders of the Acquiror and the Company of this Agreement, and all corpo- rate and shareholder action necessary to authorize the execu- tion and delivery of the Bank Merger Agreement and consummation of the transactions contemplated thereby shall have been duly and validly taken by the Bank and the Acquiror New Hampshire Bank.
(b) All approvals and consents for the transactions contemplated hereby and the Bank Merger Agreement from the FRB, the FDIC, the OCC, the NHBTCI, the Bank Commissioner, the Su- perintendent and any other Governmental Entity the approval or consent of which is required for the consummation of the Merger, the Bank Merger and the other transactions contemplated hereby shall have been received and all statutory waiting peri- ods in respect thereof shall have expired; and the Acquiror and the Company shall have procured all other approvals, consents and waivers of each Lender person (other than the Governmental Enti- ties referred to make above) whose approval, consent or waiver is necessary to the consummation of the Merger, the Bank Merger and the other transactions contemplated hereby and the failure of which to obtain would have the effects set forth in the fol- lowing proviso clause; provided, however, that no approval or consent referred to in this Section 6.1(b) shall be deemed to have been received if it shall include any Loancondition or re- quirement that, individually or Issuing in the aggregate, would so ma- terially reduce the economic or business benefits of the trans- actions contemplated by this Agreement to the Acquiror that had such condition or requirement been known the Acquiror, in its reasonable judgment, would not have entered into this Agree- ment.
(c) None of the Acquiror, the Company or their re- spective Subsidiaries shall be subject to any statute, rule, regulation, injunction or other order or decree which shall have been enacted, entered, promulgated or enforced by any gov- ernmental or judicial authority which prohibits, restricts or makes illegal consummation of the Merger or the Bank Merger or any of the other transactions contemplated hereby.
(d) The Form S-4 shall have become effective under the Securities Act, and the Acquiror shall have received all state securities laws or "blue sky" permits and other authori- zations or there shall be exemptions from registration require- ments necessary to issue the Acquiror Common Stock in connec- tion with the Merger, and neither the Form S-4 nor any Letter such permit, authorization or exemption shall be subject to a stop order or threatened stop order by the Commission or any state securities authority.
(e) The shares of CreditAcquiror Common Stock to be issued in connection with the Merger shall have been approved for listing on the Nasdaq Stock Market's National Market.
(f) Each of KPMG Peat Marwick LLP, on any Credit Datethe Acquiror's independent public accountants, including and Ernst & Young LLP, the Company's independent public accountants, shall have issued a letter dated as of the Effective Date Time, to the Acquiror and to the Company, respectively, to the effect that, based on a re- view of this Agreement and related agreements (including with- out limitation the agreements referred to in Section 5.13(b) hereof) and the facts and circumstances then known to it (in- cluding without limitation the number of Dissenting Shares, if any, in relation to the number of outstanding shares of Company Common Stock immediately prior to the Effective Time), the Merger shall be accounted for as a pooling-of-interests under generally accepted accounting principles.
(g) The Acquiror shall have received the written opinion of Elias, Matz, ▇▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the & ▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not L.L.P. to exceed $10,000,000 used to pay ▇the effect that the Merger will constitute a reorganization within the meaning of Section 368 of the Code, and the Company shall have received the written opinion of Wachtell, Lipton, ▇▇▇▇▇ Acquisition Financing Requirements)& ▇▇▇▇ to such effect and to the effect that (i) except for cash re- ceived in lieu of fractional share interests, if holders of Com- pany Common Stock who receive Acquiror Common Stock in the Merger will not recognize income, gain or loss for federal in- come tax purposes, (Aii) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as basis of such Credit Date, Acquiror Common Stock will equal the Leverage Ratio as basis of the last day of the most recent Fiscal Quarter Company Common Stock for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b)it is exchanged, determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 the holding period of such Acquiror Common Stock will include the holding period of the Company Common Stock for which it is exchanged, assuming that such stock is a capital asset in respect the hands of subsequent Fiscal Quartersthe holder thereof at the Effective Time. Any Agent or Requisite Lenders Each such opinion shall be entitledbased on such written representations from the Acquiror, but not obligated to, the Company and oth- ers as such counsel shall reasonably request and receive, prior as to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesfactual mat- ters.
Appears in 1 contract
Conditions Precedent. The obligation of each the Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, the Loans hereunder on any Credit Date, including the Effective Closing Date and to fund the ▇▇▇▇▇▇ Acquisition Closing Date, are Loans proceeds is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(a) The Lender has received on or prior to the Closing Date from the Borrower Group:
(i) Administrative Agent shall have received a fully All Loan Documents duly executed in favor of the Lender by the Borrower Group in form and delivered Funding Notice or Issuance Noticecontent acceptable to the Lender, as the case may bein its sole and absolute discretion;
(ii) after making All due diligence, including but not limited to such financial information and reporting, as required by and acceptable to the Credit Extensions requested on such Credit DateLender, as set forth in the loan commitment letter, dated December 23, 1996, executed by Lender to Borrowers, and accepted by the Borrowers, the Total Utilization terms and provisions of Revolving Commitments shall not exceed the Revolving Commitments then in effectwhich are incorporated herein by reference;
(iii) as The Instruments of Security and such Credit Dateother instruments in form and content acceptable to the Lender in its sole and absolute discretion in order to create, continue or perfect a Prior Security Interest and first Lien in favor of the Lender on the Equipment Collateral for the purpose of securing payment of the Loans, and the indebtedness evidenced thereby, and any and all recording and other fees and taxes in connection therewith shall have been paid by the Borrower Group;
(b) The representations and warranties of the Borrower Group contained herein and in the other Credit Documents Article Four hereof shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that dateClosing Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties of changes caused by the transactions herein contemplated; there shall have been true and correct in all material respects exist on and as of such earlier date;
(iv) as of such Credit the Closing Date, no Event of Default and no event, which with notice, lapse of time or the happening of any further condition, event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that act, would constitute an Event of Default or a Default;.
(vc) on The disbursement of the Loans proceeds (including the use by Borrower of such Loans proceeds) shall not violate any applicable law or before governmental regulation (including without limitation, the date of issuance of any Letter of CreditLender Regulations, Administrative Agent shall have received all other information the Blue Sky Law and the Federal Securities Law.
(d) If required by Lender, Lender has received the applicable Issuance NoticeOpinion of Counsel, duly executed in favor of Lender, in form and such other documents or information as Issuing Bank may reasonably require content acceptable to it in connection with the issuance of such Letter of Credit; andits sole and absolute discretion.
(vie) in As of the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, there are no actions, suits, proceedings or claims pending or threatened against or affecting the Leverage Ratio as Borrower Group, the result of which might substantially affect the financial condition, business or operations of the last day Borrower Group.
(f) This Agreement and the other Loan Documents provided for herein are valid and binding obligations of the most recent Fiscal Quarter for which financial statements have been delivered to Borrower Group.
(g) The Loans and the Lenders pursuant to Section 5.1(b), determined on a pro forma basis Loan Documents are current in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; all respects and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesno defaults exist thereunder.
Appears in 1 contract
Sources: Loan Agreement (Insurance Management Solutions Group Inc)
Conditions Precedent. 7.1 Conditions Precedent to the Initial Purchaser's Obligations. The obligation obligations of the Initial Purchaser to purchase Notes are subject to satisfaction (or written waiver) at or prior to the Closing of the following conditions:
(a) The representations and warranties of the Company contained herein shall be true and correct when made and at the Closing Date;
(b) No action, suit, investigation or proceeding shall be pending or threatened before any court or governmental agency to restrain, prohibit, collect damages as a result of or otherwise challenge this Agreement or any Note or any transaction contemplated hereby or thereby;
(c) Except as set forth in Schedule 4.14, no Event of Default or Default shall have occurred and be continuing. In addition, the Company shall have received and provided to the Initial Purchaser a written consent signed by each Lender of the lenders of the Senior Indebtedness, in form and substance satisfactory to make any Loanthe Initial Purchaser, or Issuing Bank consenting to issue any Letter of Creditthis Agreement, on any Credit Date, including the Effective Date Notes and the ▇▇▇▇▇▇ Acquisition transactions contemplated thereby and confirming that no event of default or default shall occur under the agreements governing the Senior Indebtedness as a result of the Company entering into the Agreement or the Notes or performing its obligations thereunder. The Company shall have received and provided to the Initial Purchaser a waiver signed by each of the lenders of the Senior Indebtedness, in form and substance satisfactory to the Initial Purchaser, waiving all then existing events of default or defaults under the agreements governing the Senior Indebtedness.
(d) The Initial Purchaser shall have received a legal opinion of counsel to the Company, dated the Closing Date, are subject as to the satisfactionmatters set forth on Exhibit B hereto;
(e) All governmental and third party approvals necessary or advisable in connection with the Note, this Agreement and the transactions contemplated hereby and thereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or waiver threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the Note, this Agreement or the transactions contemplated hereby and thereby;
(f) There shall have been no disruption or adverse change after the date hereof in accordance with Section 10.5the United States financial or capital markets generally, of as reasonably determined by the following conditions precedentInitial Purchaser;
(g) The Company shall have delivered to the Initial Purchaser:
(i) Administrative Agent shall certificates of a duly authorized officer of the Company dated as of the Closing Date (A) stating that the conditions set forth in clauses (a) through (c) and (e) of this Section 7.1 have received been satisfied, (B) setting forth the resolutions of the board of directors of the Company authorizing the execution and delivery of this Agreement and the Note and the consummation of the transactions contemplated hereby and thereby and certifying that such resolutions were duly adopted and have not been rescinded or amended and (C) certifying as to the incumbency of the officers of the Company authorized to sign this Agreement and the other Financing Documents along with a fully executed and delivered Funding Notice or Issuance Notice, as the case may bespecimen signature of each such officer;
(ii) after making copies of the Credit Extensions requested on such Credit DateCompany's Certificate of Incorporation, certified by the Total Utilization Secretary of Revolving Commitments shall not exceed State of the Revolving Commitments then in effect;State of Texas, and the Company's By-Laws, certified by the Secretary of the Company; and
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information relating to the transactions contemplated hereby as Issuing Bank the Initial Purchaser may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesrequest.
Appears in 1 contract
Sources: Subordinated Note Purchase Agreement (Travis Boats & Motors Inc)
Conditions Precedent. (a) The obligation of each Lender LaSalle to make any fund the Term Loan, or Issuing Bank to issue any fund the initial Revolving Loan, and to co-sign as applicant for the initial Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the Closing Date of the following conditions precedent:
(i) Administrative Agent LaSalle shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as Schedule 15(a)(i) (the case may be"Closing Agenda");
(ii) after making the Credit Extensions requested on such Credit DateSince March 31, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date2000, no event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect, as determined by LaSalle in its sole discretion;
(iii) LaSalle shall have received payment in full of all fees and be continuing expenses payable to it by Borrower on or would result from before the consummation Closing Date;
(iv) LaSalle shall have determined that immediately after giving effect to (A) the making of the applicable Credit Extension that would constitute an Event initial Loans, including without limitation the Term Loan and the Revolving Loans, if any, requested to be made on the Closing Date, (B) the issuance of Default the initial Letter of Credit, if any, requested to be made on the Closing Date and (C) the payment or reimbursement by Borrower of LaSalle for all closing costs and expenses incurred in connection with the transactions contemplated hereby, on a Defaultpro forma basis the Excess Availability of Borrower shall not be less than One Million Dollars ($1,000,000);
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent LaSalle shall have received all other information required by a certificate from Borrower's chief executive officer or chief financial officer, pursuant to which such officer shall certify that in calculating the applicable Issuance NoticeExcess Availability described in clause (iv) above, Borrower's outstanding trade payables were (and such other documents or information as Issuing Bank may reasonably require are) current and not past due in connection with the issuance of such Letter of Creditany material respect; and
(vi) in The Obligors shall have executed and delivered to LaSalle all documents which LaSalle determines are reasonably necessary to consummate the case transactions contemplated hereby. After the Closing Date, the obligation of a LaSalle to make any requested Revolving Loan used in connection with the financing or to co-sign as applicant for any requested Letter of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating Credit is subject to the satisfaction of Administrative Agent that, as of the conditions precedent set forth below. Each such Credit Date, request shall constitute a representation and warranty that such conditions are satisfied:
(i) All representations and warranties contained in this Agreement and the Leverage Ratio Other Agreements shall be true and correct on and as of the last day date of such request, as if then made, other than representations and warranties that relate solely to an earlier date;
(ii) No Default or Event of Default shall have occurred, or would result from the making of the most recent Fiscal Quarter for requested Revolving Loan or the issuance of the requested Letter of Credit, which financial statements have has not been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004waived; and and
(iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent Since March 31, 2000, no event has occurred which has had or Requisite Lenders shall could reasonably be entitled, but not obligated to, request and receive, prior expected to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstanceshave a Material Adverse Effect.
Appears in 1 contract
Conditions Precedent. The Tenant’s obligation to consummate the purchase of each Lender to make the Property following any Loan, or Issuing Bank to issue any Letter exercise of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of Tenant’s Purchase Option shall be specifically contingent upon the following conditions precedentat the time of such closing, any one or more of which may be waived by Tenant:
(i) Administrative Agent That Tenant shall have received be able to obtain, at Landlord’s expense, an owner’s policy of title insurance (in the then current TLTA form or its equivalent and at a fully executed and delivered Funding Notice or Issuance Noticepremium not to exceed the standard rates for insuring estates similar to the Property) after recording of the necessary conveyance documents from a title insurer reasonably acceptable to Tenant insuring the Property so acquired by Tenant in an amount equal to the purchase price therefor, as the case may be;
without exception other than (i) Permitted Encumbrances; (ii) after making other matters created by or consented to by Tenant or otherwise authorized by the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation terms of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004Lease; and (iii) 4.75:1.00 ad valorem taxes and installments of special assessments, if any, for the year in respect which the closing occurs which are not due and payable (taxes and assessments for the year in which closing occurs to be prorated between Landlord and Tenant as of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitledthe closing date).
(ii) That Tenant receives, but not obligated toat its option and at its expense, request and receive, an environmental audit with regard to the Property showing no Hazardous Materials on the Property.
(iii) That if the Improvements are damaged by casualty prior to the making date of any Credit Extensionclosing and such casualty damage has not been fully repaired as of the date of closing, additional information reasonably satisfactory then in such case at closing Tenant shall keep all insurance proceeds theretofore received by Tenant and not yet applied to the requesting party confirming cost of repairing and restoring the satisfaction Improvements in connection with such casualty damage and, in addition, Landlord shall assign, transfer and set over to Tenant all of Landlord’s right, title and interest in and to any insurance claims or proceeds that may thereafter be made with respect to any such casualty, except that any loss of rent or business interruption awards shall be prorated as of the date of closing. If any of the foregoing ifabove conditions are not satisfied or waived by Tenant prior to closing, Tenant shall have no obligation to close the acquisition of the Property, in which case (unless the good faith judgment failure to satisfy such condition results from a breach of the provisions hereof or an Event of Default) neither party shall have any liability or obligation to the other in connection with the failed sale of the Property; this Lease shall, however, in such Agent or Requisite Lender such request is warranted under case remain otherwise unaffected and in full force and effect, on and subject to each of the circumstancesterms, covenants and conditions hereof.
Appears in 1 contract
Sources: Master Lease Agreement (MedEquities Realty Trust, Inc.)
Conditions Precedent. The obligation Save as the Master Issuer, Funding 2 and the Security Trustee may otherwise agree, each Loan Tranche will not be available for utilisation on a Closing Date unless:
(a) the related Series and Class of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, Notes has been issued by the Master Issuer on any Credit Date, including the Effective relevant Closing Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject subscription proceeds thereof have been received by or on behalf of the Master Issuer;
(b) the Security Trustee has confirmed to Funding 2 that it or its advisers have received all the information and documents listed in Schedule 1 hereto (Conditions Precedent) in form and substance satisfactory to the satisfaction, or waiver Security Trustee;
(c) Funding 2 and the Master Issuer have signed a Loan Tranche Supplement (substantially in accordance with Section 10.5, the form set out in Schedule 3 hereto (Form of Loan Tranche Supplement));
(d) Funding 2 has confirmed in the following conditions precedentapplicable Loan Tranche Supplement that:
(i) Administrative Agent shall have received a fully executed no Master Intercompany Loan Event of Default has occurred and delivered Funding Notice is continuing unremedied (if capable of remedy) or Issuance Notice, as unwaived or would result from the case may bemaking of such Loan Tranche;
(ii) after making the Credit Extensions requested representations set out in CLAUSE 13 are true on such Credit Date, and as of the Total Utilization of Revolving Commitments shall not exceed Closing Date by reference to the Revolving Commitments facts and circumstances then in effect;existing; and
(iii) as of such Credit Date, there is no debit balance on the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier dateFunding 2 Principal Deficiency Ledger;
(ive) as Funding 2 has delivered a solvency certificate substantially in the form set out in Schedule 4 hereto;
(f) the Master Issuer has confirmed in the applicable Loan Tranche Supplement that:
(i) no Note Event of such Credit Date, no event shall have Default has occurred and be is continuing unremedied (if capable of remedy) or unwaived or would result from the consummation making of the applicable Credit Extension that would constitute an Event of Default or a Defaultsuch Loan Tranche;
(vii) the aggregate principal amount of Loan Tranches to be drawn on or before the date Closing Date and any Loan Tranches outstanding on such Closing Date do not exceed the Total Credit Commitment;
(g) each of issuance the Rating Agencies has confirmed in writing to the Security Trustee that there will not, as a result of the Master Issuer issuing any Notes, be any adverse effect on the then current ratings by the Rating Agencies of any Letter existing Notes of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of CreditMaster Issuer; and
(vih) one or more Deeds of Accession relating to the Funding 2 Deed of Charge have been executed by the parties to the Funding 2 Deed of Charge; and
(i) all other conditions precedent as may be specified in the case of a Revolving applicable Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements Tranche Supplement have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancessatisfied.
Appears in 1 contract
Sources: Master Intercompany Loan Agreement (Permanent Funding (No. 2) LTD)
Conditions Precedent. The obligation Conditions Precedent in favor of each Lender Vanity
8.1 Vanity’s obligations to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including carry out the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, transactions contemplated hereby are subject to the satisfaction, or waiver in accordance with Section 10.5, fulfillment of each of the following conditions precedentprecedent on or before the Closing:
(a) all documents or copies of documents required to be executed and delivered to Vanity hereunder will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by Shogun, the Shogun Majority Shareholders or the Shogun Shareholders at or prior to the Closing will have been complied with or performed;
(c) title to the Shogun Shares held by the Shogun Majority Shareholders and the Shogun Shareholders will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever, save and except as disclosed herein, and the Shogun Shares shall be duly transferred to Vanity;
(d) subject to Article 9 hereof, there will not have occurred
(i) Administrative Agent shall have received a fully executed any Material Adverse Effect in the financial position or condition of Shogun, its liabilities or the Shogun Assets or any damage, loss or other change in circumstances materially and delivered Funding Notice adversely affecting Shogun, the Shogun Business or Issuance Noticethe Shogun Assets or Shogun's right to carry on the Shogun Business, as other than changes in the case may be;ordinary course of business, none of which has been materially adverse, or
(ii) after making any damage, destruction, loss or other event, including changes to any laws or statutes applicable to Shogun or the Credit Extensions requested on such Credit DateShogun Business (whether or not covered by insurance) materially and adversely affecting Shogun, the Total Utilization of Revolving Commitments shall not exceed Shogun Business or the Revolving Commitments then in effectShogun Assets;
(iiie) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties transactions contemplated hereby shall have been true and correct in approved by all material respects on and as of such earlier dateother regulatory authorities having jurisdiction over the subject matter hereof, if any;
(ivf) as of such Credit Date, no event the transactions contemplated hereby shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required been approved by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance board of such Letter directors of CreditShogun; and
(vig) in each of the case officers and directors of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings Shogun shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction resigned as directors of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesShogun.
Appears in 1 contract
Sources: Share Exchange Agreement (Vanity Events Holding, Inc.)
Conditions Precedent. (a) The obligation of Coltec to consummate the Aerospace Distribution is subject to the following conditions, any of which may be waived by Coltec in its sole and absolute discretion, except to the extent the satisfaction of such condition is required by Law in connection with the Aerospace Distribution:
(i) all material regulatory approvals necessary to consummate the Aerospace Distribution shall have been received and shall be in full force and effect;
(ii) no order, preliminary or permanent injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing consummation of the Aerospace Distribution shall be in effect and no other event shall have occurred or failed to occur that prevents consummation of the Aerospace Distribution;
(iii) the Coltec Board of Directors shall have approved the Aerospace Distribution;
(iv) Coltec shall have received an opinion of tax counsel to the effect that the Aerospace Distribution will be tax-free to Coltec and its sole shareholder for federal income tax purposes, in form and substance satisfactory to Coltec in its sole discretion; and
(v) each Lender Transfer Document and the TIDES Indemnification Agreement shall have been duly executed and delivered by the parties thereto.
(b) The obligation of ▇▇▇▇▇▇▇▇ to make consummate the Distribution is subject to the following conditions, any Loanof which may be waived by ▇▇▇▇▇▇▇▇ in its sole and absolute discretion, except to the extent the satisfaction of such condition is required by Law in connection with the Distribution:
(i) the Form 10 shall have become effective under the Exchange Act, and there shall be no stop order in effect with respect thereto, and the Information Statement shall have been mailed to all ▇▇▇▇▇▇▇▇ Shareholders;
(ii) the EnPro Common Stock to be delivered in the Distribution shall have been approved for listing on the NYSE, subject to official notice of issuance;
(iii) all material regulatory approvals necessary to consummate the Distribution shall have been received and shall be in full force and effect;
(iv) no order, preliminary or Issuing Bank permanent injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing consummation of the Distribution shall be in effect and no other event shall have occurred or failed to issue any Letter occur that prevents consummation of Credit, on any Credit Date, including the Effective Date and Distribution;
(v) the ▇▇▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, Board of the following conditions precedent:
(i) Administrative Agent Directors shall have received a fully executed approved the Distribution and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, deemed there to be no event other events or developments that shall have occurred and be continuing or that would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan Distribution having an adverse effect on the ▇▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay or ▇▇▇▇▇▇▇▇'▇ Shareholders;
(vi) ▇▇▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating received an opinion of tax counsel to the satisfaction effect that the Distribution will be tax-free to ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Shareholders (except with respect to cash received in lieu of Administrative Agent thatfractional shares) for federal income tax purposes, as of such Credit in form and substance satisfactory to ▇▇▇▇▇▇▇▇ in its sole discretion;
(vii) each Ancillary Agreement shall have been duly executed and delivered by the parties thereto;
(viii) Coltec Aerospace shall have been transferred by Coltec to ▇▇▇▇▇▇▇▇ on the Aerospace Distribution Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered pursuant to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance Transfer Documents; and
(ix) EnPro shall have complied with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances2.07.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender to make any Loan4.1.1 Save and except as expressly provided in Articles, or Issuing Bank to issue any Letter unless the context otherwise requires, the respective rights and obligations of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Parties under this Agreement shall be subject to the satisfactionsatisfaction in full of the conditions precedent specified in this Clause 4.1 (the "Conditions Precedent").
4.1.2 The Concessionaire may at any time after 90 (ninety) days from the date of this Agreement or on an earlier day acceptable to the Concessioning Authority, by notice require the Concessioning Authority to satisfy any or all of the Conditions Precedent set forth in this Clause 4.1.2 within a period of 30 (thirty) days of the notice, or waiver such longer period not exceeding 60 (sixty) days as may be specified therein, and the Conditions Precedent required to be satisfied by the Concessioning Authority shall be deemed to have been fulfilled when the Concessioning Authority shall have:
(a) Completed the construction of civil infrastructure (i.e the testing tracks, boundary wall, campus lighting etc) of the Driving Test Tracks, at each Project Site. It is being clarified here that the construction of the Driving Test Tracks Centres at each Project Site is ongoing, the Concessioning Authority shall make endeavour to hand over all the Project Sites. However, if any of the Project Site is not completed, the other completed Project Sites shall be handed over to the Concessionaire for further upgradation/ development purposes and remaining Project Site(s) shall be handed over to Concessionaire as & when completed. Hence any delay in handing over of any of the Project Site shall not be construed as non-compliance of this Condition Precedent;
(b) Handed over the possession of the Project Sites, free of cost, to the Concessionaire, in accordance with Section 10.5, the provisions of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may beClause 11.3.1;
(iic) after making Issued the Credit Extensions requested on such Credit DateUser Fee Notification, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then as detailed out in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of CreditSchedule-R; and
(vid) Approved the Project Report submitted by the Concessionaire, within a period of 15 (fifteen) days from the date of receipt.
4.1.3 The Conditions Precedent required to be satisfied by the Concessionaire prior to the Appointed Date shall be deemed to have been fulfilled when the Concessionaire shall have:
(a) Executed and procured execution of the Substitution Agreement;
(b) Prepared and submitted the Project Report for the Project, wherein the details pertaining to the complete set up of the Automated Driving Test Tracks Centres, design, layout, infrastructure, procurement process, construction and completion schedule being proposed for Administrative Building, software/ hardware development, IT infrastructure & related connectivity etc at each Project Site etc have been provided, within a period of 01 (one) month from the date of signing of this Agreement; The Concessionaire shall be required to incorporate the comments (if any) from the Concessioning Authority in the case Project Report and thereby, submit the revised Project Report to the Concessioning Authority, for approval, within a period of a Revolving Loan used 10 (ten) days from the date of receipt of comments from the Concessioning Authority.
(c) Procured all the Applicable Permits specified in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not Schedule-E unconditionally or if subject to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000conditions, then all such conditions required to be fulfilled by the Chief Financial Officer of Holdings date specified therein shall have delivered a Compliance Certificate representing been satisfied in full and warranting such Applicable Permits are in full force and otherwise demonstrating effect. The Concessioning Authority will extend necessary administrative help to Concessionaire in procuring Applicable Permits from various Government Departments;
(d) Procured financial close and executed the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been Financing Agreements and delivered to the Lenders pursuant to Section 5.1(b)Concessioning Authority 3 (three) true copies thereof, determined on duly attested by a pro forma basis in accordance with Section 6.8(dDirector of the Concessionaire;
(e) after giving effect Delivered to the proposed Credit ExtensionConcessioning Authority 3 (three) true copies of the Financial Package and the Financial Model, shall not exceed 5.00:1.00 duly attested by a Director of the Concessionaire, along with 3 (three) soft copies of the Financial Model in respect of Fiscal Quarters ending on MS Excel version or prior to December 25any substitute thereof, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior which is acceptable to the making of any Credit Extension, additional information reasonably satisfactory Senior Lenders;
(f) Delivered to the requesting party confirming the satisfaction of any Concessioning Authority confirmation, in original, of the foregoing if, correctness of their representation and warranties setforth in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.Sub-clauses (k),
Appears in 1 contract
Sources: Concession Agreement
Conditions Precedent. The obligation obligations of each Lender the Lenders to make any Loan, or Issuing Bank to issue any Letter of Credit, Advances shall not become effective until the first date (the “Effective Date”) on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, which all of the following conditions precedentprecedent have been satisfied:
(a) There shall have occurred no material adverse change in the business, assets, operations or condition, financial or otherwise, of PPG and its Subsidiaries taken as a whole since December 31, 2015.
(b) Except for the Disclosed Matters, there shall exist no action, suit, investigation, litigation or proceeding affecting PPG or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any of the other Loan Documents or the consummation of the transactions contemplated hereby or thereby.
(c) Except for information included in PPG’s filings with the Securities and Exchange Commission, nothing shall have come to the attention of the Lenders since the closing of the Revolving Credit Facility to lead the Lenders to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lenders shall have been given such access to the management, records, books of account, contracts and properties of PPG and its Subsidiaries as they shall have reasonably requested.
(d) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(e) The Administrative Agent shall have received a fully completed and executed and delivered Funding Notice or Issuance Notice, as the case may be;of Borrowing.
(iif) after making PPG shall have paid all accrued fees and expenses of the Credit Extensions requested Administrative Agent and the Lenders (including the accrued fees and expenses of counsel to the Administrative Agent) payable on such Credit or prior to the Effective Date to the extent and as previously agreed in writing.
(g) On the Effective Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents following statements shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required for the account of each Lender a certificate signed by a duly authorized officer of PPG, dated the applicable Issuance NoticeEffective Date, stating that:
(i) The representations and such other documents or information warranties contained in Section 4.01 are correct on and as Issuing Bank may reasonably require in connection with of the issuance of such Letter of Credit; Effective Date,
(ii) No event has occurred and is continuing that constitutes a Default, and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(diii) after giving effect to the proposed Credit ExtensionAdvances and all advances made under the Other Term Loan Agreement and all other Total Indebtedness, shall the ratio of Total Indebtedness to Total Capitalization will not exceed 5.00:1.00 60%, and providing a calculation thereof in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information detail reasonably satisfactory to the requesting party confirming Lenders and the satisfaction aggregate principal amount of any borrowings outstanding from one or more banks or other financial institutions acting in a similar capacity of the foregoing ifCompany and its subsidiaries, on a consolidated basis, will not exceed $4.5 billion.
(h) The Administrative Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance reasonably satisfactory to the good faith judgment Administrative Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.15.
(ii) Certified copies of resolutions of the Board of Directors and the Executive Committee of PPG authorizing the negotiation and execution of this Agreement and the other Loan Documents, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the other Loan Documents.
(iii) A certificate of the Secretary or an Assistant Secretary of PPG certifying the names and true signatures of the officers of PPG authorized to sign this Agreement and the other Loan Documents and the other documents to be delivered hereunder or thereunder.
(iv) Favorable opinions of ▇▇▇▇▇ ▇▇▇▇, Esquire and K&L Gates LLP, counsel for PPG, substantially in the forms of Exhibit E-1 and Exhibit E-2 hereto, respectively, and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(v) [Intentionally Omitted].
(vi) Written evidence (which may include telecopy transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement.
(i) The Administrative Agent and the Lenders shall have received, at least three Business Days prior to the Effective Date, all documentation and other information about the Borrowers as shall have been reasonably requested by the Administrative Agent or Requisite Lender such request the Lenders that they shall have reasonably determined is warranted required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the circumstancesPATRIOT Act.
Appears in 1 contract
Conditions Precedent. 1. The obligation obligations of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date Lessor and the Lessee hereunder shall be conditioned upon the following:
(a) The receipt by the Lessor of a written commitment and the execution of loan documents implementing said commitment in an amount, form and upon terms satisfactory to Lessor from a lender or lenders obligating such lender(s) (hereinafter called “Lessor’s Lender(s)”) to provide Lessor with funds to construct the Building Improvements as hereinafter provided.
(b) The consummation of the Ground Lease with the Port of Catoosa of the Land upon terms and conditions acceptable to Lessor.
(c) Written approval of this Lease by the City of Tulsa-▇▇▇▇▇▇ Acquisition Closing Date, are subject County Port Authority (the "Port Authority") and Lessor’s Lender(s). Lessor shall use reasonable efforts to the satisfaction, or waiver in accordance with Section 10.5, obtain such approvals and shall keep Lessee reasonably advised of the following conditions precedent:status thereof.
(id) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as Should the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall foregoing events not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before September 1, 2006, this Lease shall terminate thirty (30) days thereafter, all rentals, security deposits and other sums paid to Lessor by Lessee pursuant to this Lease shall be returned to Lessee within ten (10) days thereafter, and neither party shall have any further obligation or liability to the other under this Lease except as may be expressly provided for to the contrary hereunder, and provided that the Lease Agreement dated the 2nd day of May, 2006 (the “2006 Lease Agreement”) shall continue in full force and effect without any effect thereon by the termination of this Lease except that the date of issuance July 1, 2006 appearing in Article II, paragraph 1.(c) of the 2006 Lease Agreement shall be a date which is sixty (60) days after termination of this Lease under this paragraph (d).
(e) Upon satisfaction of the conditions set forth in paragraphs (a) through (c) of this paragraph 1 and paragraph 2 of this Article II, the 2006 Lease Agreement shall terminate and all rentals, security deposits and other sums paid to the lessor thereunder by Lessee pursuant thereto shall be returned to Lessee within ten (10) days thereafter.
2. In addition to the conditions to the obligations of Lessor and Lessee hereunder contained in paragraph 1 of this Article II, the obligations of Lessee under this Lease are expressly conditioned on Lessor, at Lessor’s sole cost and expense, obtaining and delivering to Lessee, a Phase I Environmental Site Assessment of the Demised Premises (the “Assessment”) acceptable to Lessee, in Lessee's sole discretion. If the Assessment reveals any Letter of Creditmatter that is unacceptable to Lessee, Administrative Agent in its sole discretion, or if Lessor shall fail to deliver the Assessment to Lessee within twenty-one (21) days from the date hereof, Lessee shall have the right to terminate this Lease by written notice to Lessor. Such notice of termination shall be delivered to Lessor the earlier of five (5) business days after Lessee’s receipt thereof or twenty-five (25) days from the date hereof. If no notice of termination is received by Lessor, Lessee shall be deemed to have waived this condition precedent. If Lessee elects to terminate this Lease, all rentals, security deposits and other information required sums paid to Lessor by the applicable Issuance NoticeLessee pursuant to this Lease shall be returned to Lessee within ten (10) days thereafter, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings neither party shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating any further obligation or liability to the satisfaction of Administrative Agent that, other under this Lease except as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter may be expressly provided for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b)contrary hereunder, determined on a pro forma basis and provided that the 2006 Lease Agreement shall continue in accordance with Section 6.8(dfull force and effect without any effect thereon except as set forth in paragraph 1(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesthis Article II.
Appears in 1 contract
Sources: Lease Agreement (Lmi Aerospace Inc)
Conditions Precedent. The obligation proposed acquisition by Mikro of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver 100% equity interest in accordance with Section 10.5, of Busway is conditional upon the following conditions precedent:
precedent being obtained/fulfilled or waived (i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be) by the day falling 3 months from the date of the Busway SSA, or such later date as the parties to the Busway SSA may mutually agree upon (“Busway Cut-Off Date”):-
(a) Mikro being satisfied with the unaudited balance sheets and profit and loss accounts of Busway made up from 1 January 2019 up to (and including) 30 April 2019 signed by 2 directors of Busway, which shall be prepared by Busway and delivered by the Busway Vendors to Mikro together with a statement of the total assets minus the total liabilities of Busway (“Busway NAV”) signed by 2 directors of Busway as at 30 April 2019, to be prepared by Busway and issued together with the management accounts of Busway (“Busway NAV Statement”) (“Busway Management Accounts”) and the Busway NAV Statement and in particular, the Busway NAV as at 30 April 2019 being not less than RM6,224,000;
(iib) after making Mikro having obtained the Credit Extensions requested on such Credit Date, approval of its shareholders at a general meeting to be convened for the Total Utilization acquisition of Revolving Commitments shall not exceed the Revolving Commitments then entire issued and paid-up share capital of Busway and the issuance of the Consideration Shares in effectaccordance with the terms and conditions of the Busway SSA;
(iiic) as the Busway Vendors having obtained at its own cost and expense the approval or consent of such Credit Datethe financiers/creditors of Busway for, inter alia, the representations sale and warranties contained herein transfer of the entire issued and paid-up share capital of Busway in favour of Mikro, upon the other Credit Documents shall be true terms and correct in all material respects on and as of that Credit Date subject to the same extent as though made on conditions of the Busway SSA, where required;
(d) the Busway Vendors having obtained at its own cost and as expense the approval or consent of that dateany party which has entered into any subsisting arrangement, except contract (including manufacturing or distributor or supply contract) or undertaking or guarantee with or involving Busway, where required, in each case to the extent such representations and warranties specifically relate that at the completion of the Busway SSA the same remain to an earlier date, be completed or performed or remain in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier dateforce;
(ive) as the approval of such Credit DateBursa Securities for the listing of and quotation for the Consideration Shares on the ACE Market of Bursa Securities, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Defaultwhere required;
(vf) on or before the date execution of issuance of any Letter of Credit, Administrative Agent shall have received all other information required a stakeholders’ agreement by the applicable Issuance Noticetrustee, Mirko and such other documents or information as Issuing Bank may reasonably require in connection the Busway Vendors and the deposit of the same with the issuance solicitors of Mikro as stakeholders;
(g) all conditions precedent as stipulated in the Mittric SSA having been fulfilled or obtained in accordance with the terms and conditions contained therein, other than the condition precedent set out in paragraph ii(g) Appendix II of this announcement; (h) the Busway Vendors having caused EPE Switchgear (M) Sdn. Bhd. and Efficient Power Travel Sdn. Bhd., who are the trustees of various motor vehicles belonging to Busway, to transfer the legal ownership and registration of such Letter of Creditmotor vehicles to Busway;
(i) Mikro being satisfied that no force majeure event as specified under the Busway SSA has occurred; and
(vij) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (any other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)approvals, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 waivers or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making consents of any Credit Extension, additional information reasonably satisfactory to authorities or parties as may be required by law or regulation or deemed necessary by the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesparties.
Appears in 1 contract
Sources: Share Sale Agreement
Conditions Precedent. The obligation of This Amendment shall be effective on the date that each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:precedent are satisfied or waived by the Administrative Agent and the Super-Majority Required Lenders (the date of such satisfaction or waiver, the “Eleventh Amendment Effective Date”):
(ia) the Administrative Agent shall have received a fully this Amendment, duly executed and delivered Funding Notice or Issuance Noticeby the Loan Parties, as the case may beAdministrative Agent and the Super-Majority Required Lenders;
(iib) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required that certain Eleventh Amendment Fee Letter, dated as of the date hereof, duly executed by the applicable Issuance NoticeLead Borrower and the Administrative Agent (the “Fee Letter”);
(c) the Administrative Agent shall have received the new Approved Budget referenced in Section 1 above, which shall be in form and such other documents substance acceptable to the Administrative Agent in its sole discretion;
(d) the Lead Borrower shall have paid all invoiced and accrued fees and reasonable and documented expenses of the Administrative Agent in respect of this Amendment (including but not limited to (i) the reasonable and documented fees and expenses of counsel to the Administrative Agent in respect of this Amendment, (ii) the reasonable and documented fees and expenses of the Administrative Agent Consultant and (iii) the fees which are due and payable on the date hereof pursuant to the terms of the Fee Letter);
(e) no order, injunction or information as Issuing Bank may reasonably require in connection with judgment has been entered into prohibiting the issuance closing of such Letter the Amendment or any of Creditthe transactions contemplated to occur pursuant hereto;
(f) no Default or Event of Default shall have occurred or be continuing; and
(vig) all representations and warranties contained in the case of a Revolving Loan used this Amendment (including those made in connection with the financing of a Permitted Acquisition (other than a Revolving Loan Section 6 hereof) are true and correct on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day Eleventh Amendment Effective Date. For purposes of determining compliance with the most recent Fiscal Quarter for which financial statements conditions specified in this Section 5, each Lender that has signed this Amendment shall be deemed to have been delivered consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to such Lender unless the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect Administrative Agent shall have received written notice from such Lender prior to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesEleventh Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender 4.1 Conditions Precedent to make any Loan, or Issuing Bank to issue any Initial Loans and Letter of CreditCredit Accommodations. Each of the following is a condition precedent to Lender making the initial Loans and providing the initial Letter of Credit Accommodations hereunder:
(a) Lender shall have received, on any Credit Datein form and substance satisfactory to Lender, including all releases, terminations and such other documents as Lender may request to evidence and effectuate the Effective Date and the termination by ▇▇▇▇▇▇ Acquisition Closing Date▇▇▇▇, are L.L.C. of its financing arrangements with Borrowers and the termination and release by it of any interest in and to any assets and properties of Borrowers and each Obligor, duly authorized, executed and delivered by it, including, but not limited to, UCC termination statements for all UCC financing statements previously filed by it or its predecessors, as secured party and Borrowers or any Obligor, as debtor;
(b) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has valid perfected and first priority security interests in and liens upon the Collateral and any other property which is intended to be security for the Obligations or the liability of any Obligor in respect thereof, subject only to the satisfactionsecurity interests and liens permitted herein or in the other Financing Agreements;
(c) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including, without limitation, records of requisite corporate action and proceedings which Lender may have requested in connection therewith, such documents where requested by Lender or waiver its counsel to be certified by appropriate corporate officers or governmental authorities;
(d) no material adverse change shall have occurred in accordance with Section 10.5the assets, business or prospects of Borrowers since the date of Lender's latest field examination and no change or event shall have occurred which would impair the ability of Borrowers or any Obligor to perform its obligations hereunder or under any of the following conditions precedent:other Financing Agreements to which it is a party or of Lender to enforce the Obligations or realize upon the Collateral;
(e) Lender shall have completed a field review of the Records and such other information with respect to the Collateral as Lender may require to determine the amount of Loans available to Borrowers including, without limitation, current perpetual inventory records and/or roll-forwards of Inventory through the date of closing, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Lender to accurately identify and verify the Collateral, the results of which shall be satisfactory to Lender, not more than three (3) Business Days prior to the date hereof;
(f) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons (other than from landlords of the Borrowers' leased locations) which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral or to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, acknowledgements by lessors, mortgagees and warehousemen of Lender's security interests in the Collateral, waivers by such persons of any security interests, liens or other claims by such persons to the Collateral and agreements permitting Lender access to, and the right to remain on, the premises to exercise its rights and remedies and otherwise deal with the Collateral;
(g) Borrowers shall have established the Blocked Accounts and Lender shall have received, in form and substance satisfactory to Lender, all agreements with the depository banks and Borrowers with respect to such Blocked Accounts as Lender may require pursuant to Section 6.3 hereof, duly authorized, executed and delivered by such depository banks and Borrowers;
(h) Lender shall have received evidence, in form and substance satisfactory to Lender, that Borrowers have (i) directed the banks at which Borrowers maintains deposit accounts for the initial receipt of cash, checks and other items from Borrowers' retail store locations to transfer all immediately available funds deposited in such bank only to the Blocked Accounts as required pursuant to Section 6.3 hereof or as otherwise consented to by Lender and (ii notified such banks of the security interests of Lender in such funds and the other Collateral;
(i) Administrative Agent Lender shall have received a fully Credit Card Acknowledgements in each case, duly authorized, executed and delivered Funding Notice or Issuance Notice, as by the case may beCredit Card Issuers and Credit Card Processors;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (Aj) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent thatExcess Availability as determined by Lender, as of such Credit Datethe date hereof, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) shall not be less than $3,000,000 after giving effect to the proposed initial Loans made or to be made and Letter of Credit ExtensionAccommodations issued or to be issued in connection with the initial transactions hereunder;
(k) Lender shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Lender, and certificates of insurance policies and/or endorsements naming Lender as loss payee;
(l) Lender shall not exceed 5.00:1.00 have received, in form and substance satisfactory to Lender, the opinion letter of counsel to Borrowers with respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making Financing Agreements and the security interests and liens of any Credit ExtensionLender with respect to the Collateral and such other matters and Lender may request; and
(m) the other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Lender, additional information reasonably in form and substance satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesLender.
Appears in 1 contract
Conditions Precedent. The Lessor shall have no obligation to purchase any Item of Equipment and to lease the same to Lessee unless each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
are fulfilled to the satisfaction of Lessor: (i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing which is (or with notice or lapse of time or both would result from the consummation of the applicable Credit Extension that would constitute become) an Event of Default or Event of Loss has occurred and is continuing, nor has any information come to Lessor's attention from which Lessor could reasonably and in good faith infer that such event might occur; (ii) no material adverse change in the financial condition of Lessee, which, in Lessor's good faith opinion, would impair the ability of Lessee to pay and perform its obligations under this Lease has occurred since the date specified as the Financial Condition Reference Date on the Related Exhibit A for such Item, provided, that the NationsBank Facility shall have been completed to the satisfaction of Lessor; (iii) such Item of Equipment is reasonably acceptable to Lessor, and is free of all Liens, other than any Lien specifically excepted in Section 15 hereof; (iv) the Acceptance Date for such Item of Equipment is a Default;
date within the Acquisition Period specified on the Related Exhibit A for such Item and Lessee has executed and delivered to Lessor the Related Exhibit A for such Item; (v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance Acquisition Cost of such Letter Item of CreditEquipment, when added to the total Acquisition Cost of all Equipment of the type to which such Item relates and which has been leased hereunder, or ordered by Lessor for lease hereunder, will not be such an amount so as to cause the Maximum Acquisition Cost specified on the Related Exhibit A for such Item to be exceeded; and
(vi) in Lessor has received an invoice for such Item of Equipment from the case seller thereof, approved for payment by Lessee, showing Lessor as the purchaser of such Item, or, if Lessee or a Revolving Loan used in connection with permitted sublessee is the financing seller of such Item, a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing of sale for such Item from Lessee (or as applicable, sublessee) to Lessor in form and substance satisfactory to Lessor, together with evidence, satisfactory to Lessor, within sixty (60) days following the Acceptance Date of such Items, of Lessee's (or as applicable, such sublessee's) payment to the original seller of such Items in an aggregate principal amount not at least equal to exceed $10,000,000 used ninety percent (90%) of the Acquisition Cost of such Items; (vii) Lessor has received a Lease Supplement for such Item, duly executed by Lessee, and dated the Acceptance Date for such Item; (viii) if such Item of Equipment is subject to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)motor vehicle titling and registration laws, if (A) Lessor has received a copy of the aggregate amount application for certificate of Permitted Acquisition Expenses exceeds $10,000,000 title therefor, as filed with, and bearing the filing stamp of, the appropriate department of motor vehicles or (B) other appropriate state authority, and a copy of the aggregate amount manufacturer's statement or certificate of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to origin therefor, reflecting Lessor or its nominee as owner and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings whomever Lessor shall have delivered a Compliance Certificate representing designated (if any) as first lienholder; (ix) all licenses, registrations, permits, consents and warranting approvals required by Federal, state or local laws or by any governmental body, agency or authority in connection with Lessor's ownership of, and otherwise demonstrating the delivery, acquisition, installation, use and operation of, each Item of Equipment shall have been obtained to the satisfaction of Administrative Agent that, as Lessor; (x) Lessor shall have received the Letter of Credit duly issued by the issuer thereof in an amount equal to twenty-five percent (25%) of the Acquisition Cost of such Credit Date, Item; (xi) Lessor shall have received a release from the Leverage Ratio as Lien of the last day of the most recent Fiscal Quarter for which financial statements have been delivered NationsBank Facility in form and substance satisfactory to the Lenders pursuant Lessor with respect to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004such Item; and (iiixii) 4.75:1.00 Lessor shall have received such other documents, opinions, certificates and waivers, in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request form and receive, prior to the making of any Credit Extension, additional information reasonably substance satisfactory to the requesting party confirming the satisfaction of any of the foregoing ifLessor, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesas Lessor may require.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject (a) Notwithstanding anything to the satisfactioncontrary in this Agreement, Buyer shall not be obligated to purchase the Subject Property unless, at or waiver in accordance with Section 10.5prior to closing of the transactions contemplated hereby (the "Closing"), each of the following conditions precedent("Buyer's Conditions") has been met or has been waived by Buyer in writing. Seller shall cooperate with Buyer, and agrees to execute any documents that may be necessary or convenient, in the performance of Buyer's Conditions:
(i) Administrative Agent Title to the Subject Property shall have received a fully executed be good and delivered Funding Notice marketable and shall be free and clear of all liens, encumbrances, easements, assessments, restrictions, tenancies (whether recorded or Issuance Noticeunrecorded) and other exceptions to title, except those exceptions number 1 through 6 in Schedule B of that certain Preliminary Title Report dated December 30, 2002 and prepared by Chicago Title Company under its Order No. 223181 (the "Permitted Exceptions"). Seller shall, within fifteen (15) days after the date of this Agreement, give Buyer complete copies of all unrecorded leases or occupancy agreements, if any, affecting the Subject Property or any portion thereof as of the case may be;date of this Agreement (the "Existing Leases"). Between the date of this Agreement and the earlier of the date of the Closing or the termination of this Agreement, Seller shall not (A) sign any new lease or occupancy agreement affecting the Subject Property or any portion thereof, or (B) amend any Existing Lease, or (C) execute any easement, covenant or restriction affecting the Subject Property or any portion thereof. Seller agrees there shall be no monetary liens or encumbrances affecting the Subject Property as of the date of the Closing except the liens included in the Permitted Exceptions.
(ii) after making The Escrow Holder (as defined below) shall be prepared to obtain from Chicago Title Company or other title insurance company designated by Buyer, upon the Credit Extensions requested on Closing, a CLTA Owner's Policy of Title Insurance in the full amount of the Purchase Price, insuring that marketable fee simple title to the Subject Property is vested in Buyer or Buyer's designee and a CLTA Lender's Policy of Title Insurance in the full amount of the Purchase Price. Buyer and Seller shall share equally the cost of such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;title policies.
(iii) as All of such Credit Date, the Seller's representations and warranties contained herein and in the other Credit Documents under this Agreement shall continue to be true and correct in all material respects on and as of that Credit Date the date of the Closing.
(b) Notwithstanding anything to the same extent as though made on and as of that datecontrary in this Agreement, except Seller shall not be obligated to sell the Subject Property unless at or prior to the extent such representations Closing each of the following conditions ("Seller's Conditions") has been met or has been waived by Seller in writing. Buyer shall cooperate with Seller, and warranties specifically relate agrees to an earlier dateexecute any documents that may be necessary or convenient, in which case such the performance of Seller's Conditions:
(i) All of Buyer's representations and warranties shall have been continue to be true and correct in all material respects on and as of such earlier the date of the Closing.
(ii) Buyer shall have delivered to Seller a certificate executed by Buyer's Secretary, in the form of Exhibit D (the "Secretary's Certificate"), attached hereto and made a part hereof, certifying (among other things): (A) the accuracy of the copies of the Articles of Incorporation and Bylaws attached to the Secretary's Certificate, each as amended to date;, and (B) the resolutions of the Board of Directors of Buyer, attached to the certificate authorizing the execution and delivery of this Agreement, the Note, the Warrant, and the Deed of Trust and the sale and issuance to Seller of the Shares.
(iii) Buyer shall have delivered to Seller the affidavit referred to in Section 7 of this Agreement.
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings Buyer shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered Seller an executed UCC-1 financing statement enabling Seller to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, perfect its security interest in the good faith judgment of such Agent or Requisite Lender such request is warranted under fixtures at the circumstances.Subject Property
Appears in 1 contract
Sources: Purchase and Sale Agreement (Zap)
Conditions Precedent. 13.1 The following are conditions precedent to the obligation of each Lender the Underwriters to make close the transaction contemplated by this Agreement, which conditions BIP covenants to exercise its best efforts to have fulfilled at or prior to the Closing Time and the Over-Allotment Closing Time (if applicable) and which conditions may be waived in writing in whole or in part by the Underwriters:
(a) the Units and the Additional Units shall have attributes substantially as set forth in the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus;
(b) at the Closing Time and the Over-Allotment Closing Time (if applicable), BIP shall have delivered to the Underwriters a certificate, dated the Closing Date or the Over-Allotment Closing Date, as applicable, signed on behalf of BIP by any Loantwo of its officers satisfactory to the Underwriters, acting reasonably, and certifying that:
(i) except as disclosed in or contemplated by the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus, or Issuing Bank any amendments thereto:
(A) there has been, since December 31, 2012 and prior to issue the Closing Time (or the Over-Allotment Closing Time, as applicable), no material change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of BIP on a consolidated basis; and
(B) no transaction of a nature material to BIP on a consolidated basis has been entered into, directly or indirectly, by BIP since December 31, 2012;
(ii) no order, ruling or determination (excluding temporary trading halts for the dissemination of information) having the effect of ceasing or suspending trading in any Letter securities of CreditBIP has been issued in the United States or any of the Qualifying Jurisdictions and, to BIP’s knowledge, no proceedings for such purpose are pending, contemplated or threatened;
(iii) the representations and warranties of BIP contained herein are true and correct in all respects as of the Closing Time (or the Over-Allotment Closing Time, as applicable), with the same force and effect as if made at and as of the Closing Time (or the Over-Allotment Closing Time, as applicable); and
(iv) BIP has complied with all terms and conditions of this Agreement to be complied with by BIP at or prior to the Closing Time (or the Over-Allotment Closing Time, as applicable), and all such matters shall in fact be true at the Closing Time (or the Over-Allotment Closing Time, as applicable);
(c) the Underwriters shall have received evidence satisfactory to them, acting reasonably, that the Units have been conditionally approved for listing on the TSX and the NYSE;
(d) at the Closing Time (or the Over-Allotment Closing Time, as applicable), the “lock-up” agreement between BAM and the Underwriters in form and substance satisfactory to the Underwriters shall be in full force and effect;
(e) the Underwriters shall have received at the Closing Time (or the Over-Allotment Closing Time, as applicable) the letter of the auditors of BIP updating the long-form “comfort letter” referred to in section 6.1 to a date not more than two business days prior to the date of such letter, such letter to be in form and content satisfactory to the Underwriters and their counsel, acting reasonably;
(f) at the Closing Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received a favourable legal opinion and 10b-5 negative assurance letter, dated the Closing Date or the Over-Allotment Closing Date, as applicable, on any Credit behalf of BIP from Torys LLP, BIP’s U.S. and Canadian legal counsel, addressed to the Underwriters and their counsel with respect to such matters as may reasonably be requested by the Underwriters. In connection with such opinions, Torys LLP may rely on the opinions of local counsel acceptable to counsel to the Underwriters, as to form, substance and choice of counsel, acting reasonably, as to matters governed by laws of jurisdictions other than the laws of the Province of Ontario, the Province of Alberta, the laws of the State of New York and the federal laws of the United States, and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of officers of BIP, and others;
(g) at the Closing Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received favourable legal opinions, dated the Closing Date or the Over-Allotment Closing Date, including as applicable, on behalf of BIP from local counsel in each Qualifying Jurisdiction other than the Effective Date Province of Ontario and the Province of Alberta acceptable to counsel for the Underwriters, acting reasonably, addressed to the Underwriters and their counsel with respect to such matters as may reasonably be requested by the Underwriters;
(h) at the Closing Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received a favourable legal opinion, dated the Closing Date or the Over-Allotment Closing Date, as applicable, on behalf of BIP from ▇▇▇▇▇▇▇ Acquisition Closing Date, are subject Global addressed to the satisfaction, or waiver in accordance Underwriters and their counsel with Section 10.5, of respect to such matters as may reasonably be requested by the following conditions precedent:Underwriters;
(i) Administrative Agent at the Closing Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received a fully executed favourable legal opinion and delivered Funding Notice 10b-5 negative assurance letter, dated the Closing Date or Issuance Noticethe Over-Allotment Closing Date, as applicable, from their counsel with respect to such matters as the case Underwriters may bereasonably request;
(iij) after making at the Credit Extensions requested on such Credit Closing Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received the appropriate legal opinions, dated the Closing Date or the Over-Allotment Closing Date, as applicable, addressed to the Total Utilization Underwriters and their counsel, as to compliance with the laws of Revolving Commitments Québec relating to the use of the French language, which required opinions shall not exceed be in form and substance satisfactory to the Revolving Commitments then in effectUnderwriters’ counsel, acting reasonably;
(iiik) at the Closing Time (or the Over-Allotment Closing Time, as applicable), BIP shall have delivered evidence that BIP is a “reporting issuer” and is not listed as in default of any requirements of the Canadian Securities Laws, or its equivalent, in each of the Qualifying Jurisdictions;
(l) no order suspending the effectiveness of the U.S. Registration Statement shall be in effect, and no proceeding for such Credit Datepurpose, pursuant to Rule 401(g)(2) under the representations Securities Act or pursuant to Section 8A of the Securities Act, shall be pending before or threatened by the SEC; the U.S. Prospectus and warranties contained herein and each Issuer Free Writing Prospectus shall have been timely filed with the SEC under the Securities Act (in the other Credit Documents shall be true and correct in all material respects on and as case of that Credit Date to the same extent as though made on and as of that datean Issuer Free Writing Prospectus, except to the extent such representations required by Rule 433 under the Securities Act) and warranties specifically relate to an earlier date, in which case such representations accordance with section 3.2 hereof; and warranties all requests by the SEC for additional information shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from complied with to the consummation reasonable satisfaction of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of CreditRepresentatives; and
(vim) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on at or prior to December 25the Closing Time, 2004; BILP shall have entered into a binding subscription agreement with BAM pursuant to which BAM shall have agreed to purchase, at the Closing Time, 2,262,900 RPUs (and, at the Over-Allotment Closing Time, as applicable, such Additional RPUs as determined by BAM, required to maintain BAM’s direct and indirect interest in BIP (iiion a fully exchanged basis)) 4.75:1.00 in respect at a purchase price per RPU (or Additional RPU, if applicable) equal to the Offering Price (net of subsequent Fiscal Quarters. Any Agent commissions) and the sale of such RPUs (or Requisite Lenders Additional RPUs) shall be entitled, but not obligated to, request and receive, have been completed at or prior to the making of any Credit ExtensionClosing Time (or the Over-Allotment Closing Time, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesas applicable).
Appears in 1 contract
Sources: Underwriting Agreement (Brookfield Infrastructure Partners L.P.)
Conditions Precedent. (a) The effectiveness of this Agreement and the obligation of Agent and Lenders to fund the Loans, and to issue or cause to be issued Letters of Credit hereunder, is subject to the satisfaction or waiver on or before such funding date of the following conditions precedent as determined by Agent in its sole discretion (provided, that Agent shall notify Parent and Borrowers in writing once it has determined all such conditions have been satisfied or waived):
(i) Agent shall have received each Lender of the agreements, opinions, reports, approvals, consents, certificates and other documents set forth on the closing document checklist attached hereto as SCHEDULE 17(A) (the "CLOSING DOCUMENT CHECKLIST");
(ii) Since August 22, 2006, no event shall have occurred which has had or could reasonably be expected to make any Loanhave a Material Adverse Effect on Parent and its Subsidiaries, taken as a whole, or Issuing Bank on Parent or any Borrower, individually, as determined by Agent or Requisite Lenders in their sole discretion, exercised in a commercially reasonable manner;
(iii) Agent shall have received payment in full of all fees and expenses payable to issue it by the Borrowers or any other Obligor in connection herewith, on or before the Closing Date;
(iv) Agent shall have determined that immediately after giving effect to:
(A) the making of any Revolving Loans, if any, requested to be made on the Closing Date;
(B) the issuance of any Letter of Credit, if any, requested to be made on any Credit the Closing Date;
(C) the payment of all fees due upon the Closing Date;
(D) the payment or reimbursement by the Borrowers of Agent for all closing costs and expenses incurred in connection with the transactions contemplated hereby;
(E) all Availability Closing Date Reserves; and
(F) assuming all of Borrowers' trade payables and outstanding debt other than professional fees and restructuring expenses which remain unpaid more than sixty (60) days after the due dates thereof on the date of determination, are paid by drawing additional Revolving Loans, on a PRO FORMA basis, Adjusted Availability shall not be less than Ten Million and No/100 Dollars ($10,000,000);
(v) Agent shall have completed to its satisfaction its due diligence review of the Parent and the Borrowers, their business and financial affairs and the members of their management team, Agent shall have received background investigations on the key operating members of such team, and shall have reviewed to its satisfaction the results of a field examination performed by Agent, as of a recent date, of the Collateral, including a Monthly Desktop Appraisal of the Effective Date Borrowers' Inventory, based on acceptable valuation definitions, and of the Parent's and each Borrower's books and records;
(vi) Parent and the ▇▇▇▇▇▇ Acquisition Borrowers, taken as a whole, shall be in compliance in all material respects with all applicable legal requirements and shall not be in material default of any of their respective obligations to any third parties;
(vii) Agent shall have received and reviewed to its satisfaction evidence of each Borrower's insurance coverage and Agent and Lenders, as applicable, shall have been named as loss payee or additional insured under each policy of insurance (other than workers compensation insurance), the terms of each endorsement naming Agent as loss payee or additional insured to be satisfactory to Agent;
(viii) Agent shall have had satisfactory discussions with appropriate personnel of financial institutions with which Parent and/or the Borrowers have had banking or lending relationships;
(ix) Agent and counsel to Agent shall have received and reviewed to their reasonable satisfaction all documentation and agreements evidencing and governing any indebtedness of Parent or any Borrower;
(x) Agent shall have reviewed to its reasonable satisfaction the corporate and capital structure of Parent and its Subsidiaries, on a consolidated basis, as of the date of this Agreement;
(xi) Agent shall have received (i) landlord's waivers with respect to each property being leased by Parent or a Borrower and where a material portion of the Collateral is being stored, and, if required, a waiver from any landlord's mortgagees and (ii) an acknowledgement and waiver of liens from each warehouse in which Parent or a Borrower is storing a material portion of the Inventory;
(xii) Agent shall have received and reviewed to its reasonable satisfaction (A) the unclassified sections of each government sales contract to which Parent or a Borrower is party, including without imitation each material contract between DFAS and a Borrower and (B) the duly executed amendments to contract number W91CRB-06-D-0030 between Point Blank and DFAS dated as of August 3, 2006 and contract number W91CRB-04-D-0014 between Point Blank and DFAS dated as of June 7, 2004 which specify that the United States Government cannot exercise any offset rights against any of the Borrowers' Accounts;
(xiii) Agent shall have received and reviewed to its reasonable satisfaction a Notice of Assignment under the Federal Assignment of Claims Act of 1940 which has been countersigned by DFAS with respect to (A) contract number W91CRB-06-D-0030 between Point Blank and DFAS dated as of August 3, 2006 and (B) contract number W91CRB-04-D-0014 between Point Blank and DFAS dated as of June 7, 2004;
(xiv) no Default or Event of Default would occur immediately after giving effect to this Agreement; and
(xv) The Obligors shall have executed and delivered to Agent all such other documents, instruments and agreements which Agent determines are reasonably necessary to consummate the transactions contemplated hereby.
(b) After the date of the making of the initial Revolving Loans and issuance of the initial Letters of Credit on the Closing Date, are if any, the obligation of Agent and Lenders to make any requested Loan or issue any Letter of Credit is subject to the satisfaction, or waiver in accordance with Section 10.5, satisfaction of the following conditions precedentprecedent set forth below. Each such request shall constitute a representation and warranty that such conditions are satisfied:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the All representations and warranties contained herein in this Agreement and in the other Credit Documents Other Agreements shall be true and correct in all material respects on and as of that Credit Date to the same extent date of such request, as though made on and as of that dateif then made, except to the extent such other than representations and warranties specifically that relate solely to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(ivii) as No Default or Event of such Credit Date, no event Default shall have occurred and be continuing continuing, or would result from the consummation making of the applicable Credit Extension that would constitute an Event of Default requested Loan or a Default;
(v) on or before the date of issuance of any the requested Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Creditwhich has not been waived; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent Since August 22, 2006, no event has occurred which has had or Requisite Lenders shall would be entitledreasonably likely to have a Material Adverse Effect on Parent and its Subsidiaries, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancestaken as a whole.
Appears in 1 contract
Conditions Precedent. The obligation Purchaser’s purchase of each Lender to make any Loan, or Issuing Bank to issue any Letter the Proposed Receivables described in a Purchase Request offered by Seller Representative on behalf of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are a Seller is subject to the satisfaction, or waiver in accordance with Section 10.5, satisfaction of the following conditions precedentprior to the proposed Purchase Date, all to the satisfaction of Purchaser:
(i) Administrative Agent Purchaser shall have received (A) a fully executed Purchase Request with respect to the Proposed Receivables, and delivered Funding Notice or Issuance Notice, as the case (B) such additional supporting documentation that Purchaser may behave reasonably requested from Seller Representative;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the The representations and warranties contained herein in this Agreement and in the other Credit Documents Purchase Request shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except (or in all respects to the extent such representations and warranties specifically relate to an earlier daterepresentation or warranty already contains a materiality qualifier, “Material Adverse Change” or dollar thresholds (after giving effect thereto));
(iii) Each Seller shall be in which case such representations and warranties shall have been true and correct compliance in all material respects on with each term, covenant and as other provision of this Agreement applicable to such earlier dateSeller;
(iv) as No Event of Repurchase shall then exist, unless Sellers have repurchased and paid (or are paying on such Credit proposed Purchase Date and Purchaser is satisfied that Sellers will be paying on such proposed Purchased Date), no event shall have occurred and be continuing or would result from the consummation full amount of the applicable Credit Extension that would constitute an Event Repurchase Price for the affected Purchased Receivables pursuant to the terms of Default Section 6 hereof (or a Defaultthe portion thereof required to be repurchased, to the extent provided in Section 6 hereof) or such repurchase or other payment is being made on such Purchase Date by payment in cash or by setoff by Purchaser against the Purchase Price for the Proposed Receivables;
(v) Following the sale and purchase of the Proposed Receivables set forth in the related Purchase Request, (A) the Outstanding Aggregate Purchase Amount for all Purchased Receivables shall not exceed the Facility Amount and (B) the Outstanding Account Debtor Purchase Amount with respect to any Account Debtor shall not exceed its Purchase Sublimit or such other credit limit otherwise specified by Purchaser from time to time in its sole discretion;
(vi) No Account Debtor Insolvency Event shall have occurred with respect to any Account Debtor obligated on the Proposed Receivables described in such Purchase Request and Purchaser in its sole discretion shall be satisfied with the credit standing of such Account Debtor, and no Insolvency Event with respect to any Seller shall have occurred;
(vii) Purchaser shall have received payment of all fees that are then due under Sections 2(f) and 2(g) and any other amounts that are then due under this Agreement; and
(viii) On the initial Purchase Date, Purchaser shall have received each of the following, each in form and substance satisfactory to Purchaser:
(A) Evidence that Seller Representative has established the Collection Account over which Purchaser shall have control as provided in the account control agreement described in clause (H) below;
(B) Evidence that Sellers have instructed each Account Debtor that all payments with respect to the Proposed Receivables shall be made directly to the Collection Account;
(C) A certificate of the Secretary or Assistant Secretary of each Seller substantially in the form attached as Exhibit C, certifying the names and true signatures of the incumbent officers authorized on behalf of each Seller to execute and deliver this Agreement, each Purchase Request and any other documents to be executed or delivered by it hereunder, together with its Organizational Documents and board resolutions evidencing all action necessary for each Seller to execute, deliver and perform its obligations under this Agreement;
(D) Copies of Uniform Commercial Code financing statements prepared by Purchaser, identifying each Seller as “seller” and Purchaser as “buyer” and containing the description of collateral set forth on Exhibit D, together with evidence that they have been duly filed on or before the date initial Purchase Date in the correct filing office under the Uniform Commercial Code of issuance the jurisdiction in which each Seller is located for purposes of the UCC;
(E) A good standing certificate for each Seller from its jurisdiction of organization;
(F) A fully completed Seller Information Schedule in the form attached as Schedule 2, containing certain factual information regarding each Seller to the extent that such information was not previously delivered to Purchaser;
(G) A favorable “true sale” opinion of external or in-house counsel to Sellers in form and substance satisfactory to Purchaser;
(H) An account control agreement with JPM, with respect to the Collection Account, giving Purchaser control over such account as defined under the UCC but requiring JPM to follow purchaser’s instructions only following delivery of a notice of exclusive control by Purchaser to JPM, which Purchaser agrees with Sellers it shall only provide upon an Event of Default hereunder;
(I) A lien release from any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Creditsecured party holding a lien upon any Purchased Receivables; and
(viJ) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (All documents and other than a Revolving Loan evidence that Purchaser requires for its know-your-customer and other compliance checks on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to each Seller and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstanceseach Account Debtor.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Wolverine World Wide Inc /De/)
Conditions Precedent. The obligation obligations of each Lender Buyer to make any Loanpurchase the Property pursuant to this Agreement shall, or Issuing Bank to issue any Letter at the option of CreditBuyer, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are be subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed 9.1.1. All of the representations, warranties and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization agreements of Revolving Commitments shall not exceed the Revolving Commitments then Seller set forth in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents this Agreement shall be true and correct in all material respects on as of the date hereof and as of that Credit Date the Closing Date, and Seller shall not have on or prior to the same extent Closing Date, failed to meet, comply with or perform in any material respect any covenants or agreements on Seller’s part as though made on required by the terms of this Agreement.
9.1.2. There shall be no change in the matters reflected in the Title Documents, and there shall not exist any encumbrance or title defect affecting the Real Property not described in the Title Documents except for the Permitted Exceptions or matters to be satisfied at the Close of Escrow.
9.1.3. On the Closing Date, the Title Insurance Company shall be unconditionally obligated and prepared, subject to the payment of the applicable title insurance premium and other related charges, to issue to Buyer the Title Policies containing only the Permitted Exceptions.
9.1.4. Unless Seller receives notice from Buyer at least thirty (30) days prior to the Close of Escrow, effective as of the Closing Date, any management agreement of the Seller affecting the Real Property shall be terminated by Seller and any and all termination fees incurred as a result thereof shall be the sole obligation of Seller.
9.1.5. No Tenant shall be in default under its Lease nor shall any Tenant have given notice that dateit is discontinuing operations at the Real Property nor shall a Tenant filed bankruptcy or sought any similar debtor protective measure or be the subject of an involuntary bankruptcy.
9.1.6. Seller shall, except prior to the extent expiration of the Due Diligence Period, enter into an amendment of the Leases with ISLF to waive all provisions relating to “Incentive Rent.” Such amendments shall allow for (i) 2.5% annual rent increases, beginning June 1, 2008 and (ii) a five (5) year lease extension, commencing on June 1, 2009. Such amendments shall be approved by Buyer prior to execution. In addition, such representations and warranties specifically relate amendment shall provide for the addition of the following provision: “REIT Protection. Notwithstanding anything to an earlier datethe contrary contained in this Lease, with respect to any proposed assignment, sublease, conveyance, sale, pledge, mortgage, hypothecation or other encumbrance or transfer of all or any part of this Lease or Tenant’s leasehold estate hereunder, or the engagement of any person or entity for the management or operation of all or any part of the Leased Property by Tenant (each, a “Transfer”), the following shall apply: (i) no Transfer shall be consummated on any basis such that the rental or other amounts to be paid to Landlord or Tenant by the occupant, assignee, manager or other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of the occupant, assignee, manager or other transferee; (ii) Tenant shall not consummate a Transfer with any person or entity in which case such representations Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Internal Revenue Code of 1986, as amended (the “Code”)) and warranties (iii) Tenant shall not consummate a Transfer with any person or entity or in any manner which could cause any portion of the amounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement relating to the use, occupancy or possession of any portion of the Leased Property to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Code.”
9.1.7. Seller shall obtain and deliver to Buyer, at Closing, estoppel certificates from the Tenants confirming, for each Property, that the Leases are in effect, plus, for each Property, a subordination, nondisturbance and attornment agreements (“SNDA”), as to the Buyer Mortgages, in a form customary for transactions of this kind.
9.1.8. There shall be no change in the zoning classification or the zoning ordinances or regulations affecting the Property from that existing as of the conclusion of the Due Diligence Period.
9.1.9. Except as disclosed in the Due Diligence Items, on the Closing Date, no action or proceeding shall have been true instituted or be threatened before any court or governmental authority (A) that relates to the Property and correct materially affects the Property after the Close of Escrow or (B) that seeks to restrain or prohibit, or to obtain substantial damages in all material respects on and as of such earlier date;
(iv) as of such Credit Daterespect of, no event shall have occurred and be continuing or would result from which is related to or arises out of, this Agreement or the consummation of the applicable Credit Extension transactions contemplated herein, unless Seller has demonstrated, to Buyer’s reasonable satisfaction, that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, costs and such other documents or information as Issuing Bank may reasonably require liabilities to be incurred in connection with such matters are fully covered by Seller’s insurance.
9.1.10. As of the issuance Closing Date, Seller shall not have commenced (within the meaning of such Letter of Credit; and
(viany Bankruptcy Law) in a voluntary case, nor shall there have been commenced against Seller an involuntary case, nor shall Seller have consented to the case appointment of a Revolving Loan used in connection with the financing Custodian of it or for all or any substantial part of its property, nor shall a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date court of competent jurisdiction have entered an order or decree under any Bankruptcy Law that is for relief against Seller in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)involuntary case or appoints a Custodian of Seller for all or any substantial part of its property. The term “Bankruptcy Law” means Title 11, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 U.S. Code, or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions any similar state law for the previous four Fiscal Quarters (together with relief of debtors. The term “Custodian” means any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000receiver, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent thattrustee, as of such Credit Dateassignee, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on liquidator or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of similar official under any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesBankruptcy Law.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN Healthcare/Office REIT, Inc.)
Conditions Precedent. The obligation following conditions precedent shall be satisfied in full at or prior to the Closing:
(a) the Class Action Court shall have issued final orders approving the Agreement as fair and reasonable, and otherwise in compliance with the class action laws of their respective states, and all appeals (other than appeals solely with respect to attorneys' fees and costs that do not relate to approval of any provision of this Agreement) of such orders are final and the time for any appeals shall have lapsed;
(b) the Class Action Court shall have entered final judgments of dismissal with prejudice in favor of each Lender of the Sempra Parties, and each of the Released Sempra Parties (as defined below) where applicable, as to make each of the proceedings set forth on Attachment C, and any Loanappeal is final and/or the time for any appeal (other than appeals solely with respect to attorneys' fees and costs that do not relate to approval of any provision of this Agreement) of such judgments shall have lapsed. Settling Claimants agree to deliver to the Sempra Parties a Request for Dismissal with prejudice for each Sempra Party in each Action listed in Attachment C, and the Sempra Parties agree to file each Request for Dismissal with prejudice within ten (10) days of receipt from Settling Claimants;
(c) the Parties shall have executed and delivered the full and final releases contemplated by Paragraph 5 of this Agreement and such releases shall be in full force and effect and shall not have been rescinded;
(d) Settling Claimants in the Class Actions shall have obtained a judicial determination pursuant to California Code of Civil Procedure Section 877.6, or Issuing Bank other applicable provisions of law, that this Agreement was made in good faith, and such determination shall have become final and non-appealable. Settling Claimants in the Class Actions shall seek to issue have the hearing(s) on their request for such determination held prior to, or in conjunction with, the Final Settlement Hearing (as defined below);
(e) the Sempra Parties shall have deposited the initial cash payments required by Paragraph 4.1(a) in the Settlement Fund; provided, however, that in the event that any Letter of Creditthe conditions precedent to the Closing shall not occur, on any Credit Date, including the Effective Sempra Parties shall have the absolute and unfettered right to obtain immediate return of all such payments theretofore made by the Sempra Parties;
(f) each Sempra Party shall have delivered to the Designated Representative a certificate signed by a Responsible Officer of such Sempra Party certifying that (i) the representations and warranties made by such Sempra Party in Paragraphs 7.1 and 7.3 of this Agreement are true and correct as of the Closing Date and (ii) all conditions precedent set forth in this Paragraph 3.2 applicable to such Sempra Party have been satisfied;
(g) each Settling Claimant, through the ▇▇▇▇▇▇ Acquisition Closing DateDesignated Representative, are subject shall have delivered to the satisfactionSempra Parties a certificate signed by such Settling Claimant, or waiver such Settling Claimant’s Responsible Officer or duly authorized representative if such Settling Claimant is not a natural person, certifying that (i) the representations and warranties made by such Settling Claimant in accordance with Section 10.5Paragraphs 7.1, 7.2 and 7.4 of this Agreement are true and correct as of the following Closing Date and (ii) all conditions precedent:precedent set forth in this Paragraph 3.2 applicable to such Settling Claimant have been satisfied or waived;
(h) a Designated Representative Agreement shall have been executed by the Settling Claimants and delivered to the Sempra Parties; and
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as all conditions precedent set forth in Paragraph 3.2(a) through (h) of the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties Nevada Settlement Agreement shall have been true and correct satisfied in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on full at or prior to December 25, 2004the Closing; and provided that the condition in this clause (iiii) 4.75:1.00 may be waived in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to writing by the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesSempra Parties.
Appears in 1 contract
Sources: Settlement Agreement
Conditions Precedent. The obligation Conditions Precedent in favor of each Lender MailTec
7.1 MailTec’ obligations to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including carry out the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, transactions contemplated hereby are subject to the satisfaction, or waiver in accordance with Section 10.5, fulfillment of each of the following conditions precedentprecedent on or before the Closing:
(a) all documents or copies of documents required to be executed and delivered to MailTec hereunder will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by ProVision or the ProVision Shareholder at or prior to the Closing will have been complied with or performed;
(c) MailTec shall have completed its review and inspection of the books and records of ProVision and shall be satisfied with same in all material respects;
(d) title to the ProVision Shares held by the ProVision Shareholder and to the ProVision Assets will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever, save and except as disclosed herein;
(e) the Certificate of Merger shall be executed by ProVision in form acceptable for filing with State Corporation Law, as appliacable;
(f) subject to Article 8 hereof, there will not have occurred
(i) Administrative Agent shall have received a fully executed any material adverse change in the financial position or condition of ProVision, its liabilities or the ProVision Assets or any damage, loss or other change in circumstances materially and delivered Funding Notice adversely affecting the ProVision Business or Issuance Noticethe ProVision Assets or ProVision's right to carry on the ProVision Business, as other than changes in the case may be;ordinary course of business, none of which has been materially adverse, or
(ii) after making any damage, destruction, loss or other event, including changes to any laws or statutes applicable to ProVision or the Credit Extensions requested on such Credit DateProVision Business (whether or not covered by insurance) materially and adversely affecting ProVision, the Total Utilization of Revolving Commitments shall not exceed ProVision Business or the Revolving Commitments then in effect;ProVision Assets; and
(iiig) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties transactions contemplated hereby shall have been true approved by all other regulatory authorities having jurisdiction over the subject matter hereof, if any; Waiver by MailTec
7.2 The conditions precedent set out in the preceding section are inserted for the exclusive benefit of MailTec and correct any such condition may be waived in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no whole or in part by MailTec at or prior to Closing by delivering to ProVision a written waiver to that effect signed by MailTec. In the event shall have occurred and be continuing or would result from that the consummation of conditions precedent set out in the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) preceding section are not satisfied on or before the date Closing, MailTec shall be released from all obligations under this Agreement. Conditions Precedent in Favor of issuance ProVision and the ProVision Shareholder
7.3 The obligation of any Letter ProVision and the ProVision Shareholder to carry out the transactions contemplated hereby is subject to the fulfillment of Crediteach of the following conditions precedent on or before the Closing:
(a) all documents or copies of documents required to be executed and delivered to ProVision hereunder will have been so executed and delivered;
(b) all of the terms, Administrative Agent covenants and conditions of this Agreement to be complied with or performed by MailTec at or prior to the Closing will have been complied with or performed;
(c) ProVision shall have received completed its review and inspection of the books and records of MailTec and its subsidiaries and shall be satisfied with same in all material respects;
(d) MailTec will have delivered the Acquisition Shares to be issued pursuant to the terms of the Merger to ProVision at the Closing and the Acquisition Shares will be registered on the books of MailTec in the name of the holder of ProVision Shares at the Effective Time;
(e) title to the Acquisition Shares will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other information required claims whatsoever;
(f) the Certificate of Merger shall be executed by the Merger Sub in form acceptable for filing with State Corporation Law, as applicable;
(g) subject to Article 8 hereof, there will not have occurred
(i) any material adverse change in the financial position or condition of MailTec, its subsidiaries, their liabilities or the MailTec Assets or any damage, loss or other change in circumstances materially and adversely affecting MailTec, the MailTec Business or the MailTec Assets or MailTec’ right to carry on the MailTec Business, other than changes in the ordinary course of business, none of which has been materially adverse, or
(ii) any damage, destruction, loss or other event, including changes to any laws or statutes applicable Issuance Noticeto MailTec or the MailTec Business (whether or not covered by insurance) materially and adversely affecting MailTec, and such other documents its subsidiaries, the MailTec Business or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of CreditMailTec Assets; and
(vih) the transactions contemplated hereby shall have been approved by all other regulatory authorities having jurisdiction over the subject matter hereof, if any; Waiver by ProVision and the ProVision Shareholder
7.4 The conditions precedent set out in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions preceding section are inserted for the previous four Fiscal Quarters (together with exclusive benefit of ProVision and the ProVision Shareholder and any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then such condition may be waived in whole or in part by ProVision or the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on ProVision Shareholder at or prior to December 25, 2004; the Closing by delivering to MailTec a written waiver to that effect signed by ProVision and (iii) 4.75:1.00 the ProVision Shareholder. In the event that the conditions precedent set out in respect of subsequent Fiscal Quarters. Any Agent the preceding section are not satisfied on or Requisite Lenders before the Closing ProVision and the ProVision Shareholder shall be entitled, but released from all obligations under this Agreement. Nature of Conditions Precedent
7.5 The conditions precedent set forth in this Article are conditions of completion of the transactions contemplated by this Agreement and are not obligated to, request and receive, prior conditions precedent to the making existence of any Credit Extension, additional information reasonably satisfactory a binding agreement. Each party acknowledges receipt of the sum of $1.00 and other good and valuable consideration as separate and distinct consideration for agreeing to the requesting party confirming the satisfaction conditions of any precedent in favor of the foregoing if, other party or parties set forth in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesthis Article.
Appears in 1 contract
Sources: Merger Agreement (MailTec, Inc.)
Conditions Precedent. The obligation Conditions Precedent in favor of each Lender China Health
7.1 China Health's obligations to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including carry out the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, transactions contemplated hereby are subject to the satisfaction, or waiver in accordance with Section 10.5, fulfillment of each of the following conditions precedentprecedent on or before the Closing:
(a) all documents or copies of documents required to be executed and delivered to China Health hereunder will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by Shaanxi Meichen Pharmaceuticals or the Shaanxi Meichen Pharmaceuticals Shareholders at or prior to the Closing will have been complied with or performed;
(c) title to the Shaanxi Meichen Pharmaceuticals Shares held by the Shaanxi Meichen Pharmaceuticals Shareholders and to the Shaanxi Meichen Pharmaceuticals Assets will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever, save and except as disclosed herein, and the Shaanxi Meichen Pharmaceuticals Shares shall be duly transferred to China Health;
(d) subject to Article 8 hereof, there will not have occurred
(i) Administrative Agent shall have received a fully executed any material adverse change in the financial position or condition of Shaanxi Meichen Pharmaceuticals , its liabilities or the Shaanxi Meichen Pharmaceuticals Assets or any damage, loss or other change in circumstances materially and delivered Funding Notice adversely affecting Shaanxi Meichen Pharmaceuticals , the Shaanxi Meichen Pharmaceuticals Business or Issuance Noticethe Shaanxi Meichen Pharmaceuticals Assets or Shaanxi Meichen Pharmaceuticals 's right to carry on the Shaanxi Meichen Pharmaceuticals Business, as other than changes in the case may be;ordinary course of business, none of which has been materially adverse, or
(ii) after making any damage, destruction, loss or other event, including changes to any laws or statutes applicable to Shaanxi Meichen Pharmaceuticals or the Credit Extensions requested on such Credit DateShaanxi Meichen Pharmaceuticals Business (whether or not covered by insurance) materially and adversely affecting Shaanxi Meichen Pharmaceuticals , the Total Utilization of Revolving Commitments shall not exceed Shaanxi Meichen Pharmaceuticals Business or the Revolving Commitments then in effect;Shaanxi Meichen Pharmaceuticals Assets; and
(iiie) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties transactions contemplated hereby shall have been true approved by all other regulatory authorities having jurisdiction over the subject matter hereof, if any. Waiver by China Health
7.2 The conditions precedent set out in the preceding section are inserted for the exclusive benefit of China Health and correct any such condition may be waived in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no whole or in part by China Health at or prior to the Closing by delivering to Shaanxi Meichen Pharmaceuticals a written waiver to that effect signed by China Health. In the event shall have occurred and be continuing or would result from that the consummation of conditions precedent set out in the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) preceding section are not satisfied on or before the date Closing, China Health shall be released from all obligations under this Agreement. Conditions Precedent in Favor of issuance Shaanxi Meichen Pharmaceuticals and the Shaanxi Meichen Pharmaceuticals Shareholders
7.3 The obligations of any Letter Shaanxi Meichen Pharmaceuticals and the Shaanxi Meichen Pharmaceuticals Shareholders to carry out the transactions contemplated hereby are subject to the fulfillment of Credit, Administrative Agent shall have received each of the following conditions precedent on or before the Closing:
(a) all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance copies of such Letter of Credit; anddocuments required to be executed and delivered to Shaanxi Meichen Pharmaceuticals hereunder will have been so executed and delivered;
(vib) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as all of the last day terms, covenants and conditions of the most recent Fiscal Quarter for which financial statements have been delivered this Agreement to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance be complied with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or performed by China Health at or prior to December 25the Closing will have been complied with or performed;
(c) China Health will have delivered the Acquisition Shares and the Cash Payment to be issued pursuant to the terms of the Acquisition to Shaanxi Meichen Pharmaceuticals at the Closing and the Acquisition Shares will be registered on the books of China Health in the name of the Shaanxi Meichen Pharmaceuticals Shareholders at the time of Closing;
(d) title to the Acquisition Shares will be free and clear of all mortgages, 2004liens, charges, pledges, security interests, encumbrances or other claims whatsoever;
(e) subject to Article 8 hereof, there will not have occurred
(i) any material adverse change in the financial position or condition of China Health, its liabilities or the China Health Assets or any damage, loss or other change in circumstances materially and adversely affecting China Health, the China Health Business or the China Health Assets or China Health' right to carry on the China Health Business, other than changes in the ordinary course of business, none of which has been materially adverse, or
(ii) any damage, destruction, loss or other event, including changes to any laws or statutes applicable to China Health or the China Health Business (whether or not covered by insurance) materially and adversely affecting China Health, the China Health Business or the China Health Assets;
(f) the transactions contemplated hereby shall have been approved by all other regulatory authorities having jurisdiction over the subject matter hereof, if any; Waiver by Shaanxi Meichen Pharmaceuticals and (iii) 4.75:1.00 the Shaanxi Meichen Pharmaceuticals Shareholders
7.4 The conditions precedent set out in respect the preceding section are inserted for the exclusive benefit of subsequent Fiscal Quarters. Any Agent Shaanxi Meichen Pharmaceuticals and the Shaanxi Meichen Pharmaceuticals Shareholders and any such condition may be waived in whole or Requisite Lenders shall be entitled, but not obligated to, request and receive, in part by Shaanxi Meichen Pharmaceuticals or the Shaanxi Meichen Pharmaceuticals Shareholders at or prior to the making Closing by delivering to China Health a written waiver to that effect signed by Shaanxi Meichen Pharmaceuticals and the Shaanxi Meichen Pharmaceuticals Shareholders. In the event that the conditions precedent set out in the preceding section are not satisfied on or before the Closing, Shaanxi Meichen Pharmaceuticals and the Shaanxi Meichen Pharmaceuticals Shareholders shall be released from all obligations under this Agreement. Nature of any Credit Extension, additional information reasonably satisfactory Conditions Precedent
7.5 The conditions precedent set forth in this Article are conditions of completion of the transactions contemplated by this Agreement and are not conditions precedent to the requesting existence of a binding agreement. Each party confirming the satisfaction of any acknowledges receipt of the foregoing if, sum of $1.00 and other good and valuable consideration as separate and distinct consideration for agreeing to the conditions of precedent in favor of the good faith judgment of such Agent other party or Requisite Lender such request is warranted under the circumstancesparties set forth in this Article.
Appears in 1 contract
Sources: Securities Offering Agreement (China Health Holding, Inc.)
Conditions Precedent. (a) The obligation of each Lender LaSalle to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including fund the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are initial Revolving Loan is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the Closing Date of the following conditions precedent:
(i) Administrative Agent LaSalle shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as SCHEDULE 15(a)(i) (the case may be"Closing Agenda");
(ii) after making the Credit Extensions requested on such Credit DateSince June 30, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date1999, no event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect, as determined by LaSalle in its sole discretion;
(iii) LaSalle shall have received payment in full of all fees and be continuing expenses payable to it by Borrower on or would result from before the consummation Closing Date;
(iv) LaSalle shall have determined that immediately after giving effect to (A) the making of the applicable Credit Extension that would constitute an Event initial Loans, including without limitation the Revolving Loans, if any, requested to be made on the Closing Date, and (B) the payment or reimbursement by Borrower of Default or LaSalle for all closing costs and expenses incurred in connection with the transactions contemplated hereby, on a DefaultPRO FORMA basis the Excess Availability of Borrower shall not be less than Three Hundred Thousand and no/100 Dollars ($300,000.00);
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent LaSalle shall have received all other information required by a certificate from Borrower's chief executive officer or chief financial officer, pursuant to which such officer shall certify that in calculating the applicable Issuance NoticeExcess Availability described in clause (iv) above, Borrower's outstanding trade payables were (and such other documents or information as Issuing Bank may reasonably require are) current and not past due in connection with the issuance of such Letter of Creditany material respect; and
(vi) in The Obligors shall have executed and delivered to LaSalle all documents which LaSalle determines are reasonably necessary to consummate the case transactions contemplated hereby. After the Closing Date, the obligation of a LaSalle to make any requested Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating is subject to the satisfaction of Administrative Agent that, as of the conditions precedent set forth below. Each such Credit Date, request shall constitute a representation and warranty that such conditions are satisfied:
(vii) All representations and warranties contained in this Agreement and the Leverage Ratio Other Agreements shall be true and correct on and as of the last day date of the most recent Fiscal Quarter for which financial statements such request, as if then made, other than representations and warranties that relate solely to an earlier date;
(viii) No Default or Event of Default shall have been delivered to the Lenders pursuant to Section 5.1(b)occurred, determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to would result from the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming requested Revolving Loan or the satisfaction of any issuance of the foregoing ifrequested Letter of Credit, in the good faith judgment of such Agent which has not been waived; and
(ix) Since June 30, 1999, no event has occurred which has had or Requisite Lender such request is warranted under the circumstancescould reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Loan and Security Agreement (Bpi Packaging Technologies Inc)
Conditions Precedent. The obligation 29.1 Subject to Section 29.2 hereof, this Amalgamation Agreement shall have no force and effect whatsoever and shall be null and void unless:
(a) each party has completed its due diligence prior to January 18, 1999;
(b) the Amalgamation Agreement and the Amalgamation have been adopted by the Shareholders of each Lender of the Amalgamating Companies as required by the Company Act;
(c) immediately prior to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and there are no material adverse changes in the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, financial position or waiver in accordance with Section 10.5, assets or liabilities of any of the following conditions precedent:Amalgamating Companies and except as affected by the transactions contemplated by this Amalgamation Agreement;
(id) Administrative Agent neither of the Amalgamating Companies shall have received prior to the last day on which a fully executed and delivered Funding Notice Dissenting Shareholder may give notice pursuant to Section 249 of the British Columbia Act (the "Objection Date"), written objections to the Amalgamation from Dissenting Shareholders of either Pacific or Issuance NoticeRodera, as the case may be, which would require that Amalgamating Company to acquire its Shares from Dissenting Shareholders (excluding directors and officers of that Amalgamating Company) for an aggregate purchase price which exceeds $50,000 ;
(iie) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the all representations and warranties of an Amalgamating Company contained herein and in the other Credit Documents shall Section 25 will be true and correct in all material respects on and as of that Credit Date immediately prior to the same extent Effective Date except for such changes as though made on and as of that date, except are referred to the extent such representations and warranties specifically relate or provided herein or agreed to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required writing by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of CreditAmalgamating Company; and
(vif) the approval of the Court and all securities regulatory authorities having jurisdiction over the subject matter hereof has been obtained.
29.2 If any condition set out in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition Section 29.1 (other than paragraph 29.1(6) or 29.1(f)) shall not be fulfilled or performed, the party entitled to the benefit of such condition shall be entitled to terminate this Amalgamation Agreement or to waive the condition; provided that if, either Amalgamating Company (the "Company with Objections") receives sufficient written objections to the Amalgamation pursuant to paragraph 29.1(d) such that the condition is not fulfilled, the following shall apply:
(a) the right of the other Amalgamating Company to terminate the Amalgamation Agreement pursuant to this Section 29.2 shall be held in abeyance for a Revolving Loan on period of thirty (30) days following the ▇▇▇▇▇▇ Acquisition Closing Date in an Objection Date;
(b) during such thirty (30) day period, the Company with Objections shall use reasonable efforts to procure one or more purchasers for such number of its shares held by Dissenting Shareholders, such that the aggregate principal amount purchase price payable by the Company with Objections to all Dissenting Shareholders (excluding directors and officers of the Company with Objections) for their shares will not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if 50,000;
(Ac) the other Amalgamating Company may, during such thirty (30) day period, attempt to procure one or more purchasers for such number of the shares of the Company with Objections held by Dissenting Shareholders, such that the aggregate amount purchase price payable by the Company with Objections to the Dissenting Shareholders (excluding directors and officers of Permitted Acquisition Expenses exceeds the Company with Objections) for their shares will not exceed $10,000,000 or 50,000; and
(Bd) the aggregate amount other Amalgamating Company shall be entitled to terminate this Amalgamation Agreement for non-fulfilment of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters condition set out in paragraph 29.1 (together with any Permitted Acquisition agreed to and not yet consummatedd) exceeds $20,000,000only if, then upon the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as expiration of such Credit Datethirty (30) day period, there are insufficient written commitments from one or more purchasers to acquire such number of shares from Dissenting Shareholders as shall be sufficient to reduce the Leverage Ratio as aggregate purchase price payable by the Company with Objections to all Dissenting Shareholders (excluding directors and officers of the last day of the most recent Fiscal Quarter Company with Objections) for which financial statements have been delivered their shares to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on $50,000 or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesless.
Appears in 1 contract
Sources: Amalgamation Agreement (Pacific Rodera Ventures Inc)
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date Seller and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject Purchaser shall only be obliged to complete the satisfaction, Transaction and perform the actions set out in Clause 6.3 when the following conditions precedent have been fulfilled (or waiver waived in accordance with Section 10.5Clause 5.3) by the Long Stop Date (and, where applicable, continues to be fulfilled) (the “Conditions Precedent"):
a. Each of the following conditions precedentBread Consent and the Lenders' Consent being in full force and effect (the “Consents Condition”);
b. No Encumbrance granted by any Group Company being enforced by any relevant beneficiary, other than an Encumbrance granted by any Group Company to the Purchaser or Purchaser’s Group (the “Non-Enforcement Condition”);
c. The BL Bridge Loan Consent Effective Date has occurred (the “BL Bridge Loan Consent Condition”);
d. The Seller’s Warranties are true and accurate (the “Seller’s Warranties Condition”);
e. The Purchaser’s Warranties are true and accurate (the “Purchaser’s Warranties Condition”);
f. All required notifications, filings and application with the Competition Authorities in connection with the Transaction ("Merger Clearance Filings") having been made, and each of the relevant Competition Authorities having either:
(i) Administrative Agent shall have received issued a fully executed written statement or decision confirming that execution and delivered Funding Notice performance of this Agreement does not fall within the scope of authority of the relevant Competition Authority (A) without referring the Transaction or Issuance Noticeany part thereof to another competition authority, or (B) referring the Transaction or any part thereof to another competition authority in accordance with relevant Law and one of the requirements listed in items (i) through (iii) having been fulfilled in respect of such other competition authority;
(ii) issued a written statement or decision unconditionally clearing the execution and performance of this Agreement; or
(iii) not having issued a written statement or decision prior to expiry of the relevant waiting period or applicable time period under the relevant competition Laws thereby implying that unconditional clearance to the execution and performance of this Agreement has been given, (the "Merger Clearance Condition"); and
g. If and to the extent required to be made prior to consummation of the Transaction to comply with any mandatory Laws, any other regulatory notification, filing and application with any Governmental Authority in connection with the Transaction having been made (e.g. CFIUS), and each of the relevant Governmental Authorities having either:
(i) issued a written statement or decision confirming that execution and performance of this Agreement does not fall within the scope of authority of the relevant Governmental Authority (A) without referring the Transaction or any part thereof to another Governmental Authority, or (B) referring the Transaction or any part thereof to another Governmental Authority in accordance with relevant Law and one of the requirements listed in items (i) through (iii) having been fulfilled in respect of such other Governmental Authority;
(ii) issued a written statement or decision unconditionally approving, consenting to or otherwise clearing the execution and performance of this Agreement; or
(iii) not having issued a written statement or decision prior to expiry of the relevant waiting period or applicable time period under the relevant Laws thereby implying that unconditional approval, consent or clearance (as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on execution and as performance of that datethis Agreement has been given, except to (the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements“Regulatory Condition”), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Loyalty Ventures Inc.)
Conditions Precedent. The obligation Conditions Precedent in favor of each Lender Stella Blu
7.1 Stella Blu obligations to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including carry out the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, transactions contemplated hereby are subject to the satisfaction, or waiver in accordance with Section 10.5, fulfillment of each of the following conditions precedentprecedent on or before the Closing:
(a) all documents or copies of documents required to be executed and delivered to Stella Blu hereunder will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by Target or the Target Shareholders at or prior to the Closing will have been complied with or performed;
(c) title to the Target Shares held by the Target Shareholders and to the Target Assets will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever, save and except as disclosed herein, and the Target Shares shall be duly transferred to Stella Blu;
(d) the agreement between Stella Blu and Co-Owners, Inc., a Florida Corporation has been executed;
(e) subject to Article 8 hereof, there will not have occurred
(i) Administrative Agent shall have received a fully executed any material adverse change in the financial position or condition of Target, its liabilities or the Target Assets or any damage, loss or other change in circumstances materially and delivered Funding Notice adversely affecting Target, the Target Business or Issuance Noticethe Target Assets or Target right to carry on the Target Business, as other than changes in the case may be;ordinary course of business, none of which has been materially adverse, or
(ii) after making any damage, destruction, loss or other event, including changes to any laws or statutes applicable to Target or the Credit Extensions requested on such Credit DateTarget Business (whether or not covered by insurance) materially and adversely affecting Target, the Total Utilization of Revolving Commitments shall not exceed Target Business or the Revolving Commitments then in effectTarget Assets;
(iiif) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties transactions contemplated hereby shall have been true and correct in approved by all material respects on and as of such earlier dateother regulatory authorities having jurisdiction over the subject matter hereof, if any;
(ivg) as of such Credit Date, no event the transactions contemplated hereby shall have occurred been approved by the Board of Directors and be continuing or would result from the consummation shareholders of the applicable Credit Extension that would constitute an Event of Default or a DefaultTarget;
(vh) on or before prior to the date of issuance of any Letter of CreditClosing Date, Administrative Agent Target and/or the Target Shareholders shall have received acquired all other information required of the common shares held by Target Shareholders that are not participating in this Agreement so that Stella Blu shall acquire 100% of the applicable Issuance Noticepresently issued and outstanding Target Shares;
(i) on or prior to the First Closing Date, and such other documents or information as Issuing Bank may reasonably require in connection with Xalles Delaware shall have delivered the issuance of such Letter of CreditTarget Financial Statements; and
(vij) in on or prior to the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Second Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)Date, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to ArrowVista and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings Xalles Singapore shall have delivered the Financial Statements audited by a Compliance Certificate representing and warranting and otherwise demonstrating PCAOB approved auditor to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesStella Blu.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Hi Tech JVA is subject to and conditional upon the satisfaction, or waiver in accordance with Section 10.5, fulfillment of all of the following conditions precedentconditions:
(i) Administrative Agent shall have received SYFD receiving a fully executed and delivered Funding Notice certified true copy of the issue document of title to the Hi Tech Lands reflecting the conversion of the category of land use, where applicable, of the Hi Tech Lands from its present status to “Industrial” or Issuance Notice, as such other category of land use with such express conditions acceptable to SYFD for the case may bepurpose of the Proposed Hi Tech Joint Venture;
(ii) after making SYFD obtaining the Credit Extensions requested on such Credit Date, necessary approvals from the Total Utilization of Revolving Commitments shall not exceed relevant authorities for the Revolving Commitments then in effectProposed Hi Tech Joint Venture;
(iii) as SYFD obtaining and/or procuring the approval of such Credit Date, the representations shareholders of SYF in a general meeting to undertake the Proposed Hi Tech Joint Venture and warranties contained herein and in for SYFD to undertake the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier dateProposed Kiara Plaza Joint Venture;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from SYFD obtaining and/or procuring the consummation approval of the applicable Credit Extension that would constitute holders of the redeemable convertible secured loan stocks with an Event aggregate nominal value of Default or a Default;RM25,679,325 only issued by SYF; and
(v) on KSSB obtaining and/or procuring the approval of its directors and shareholders in a general meeting accepting and approving the transactions contemplated in the Hi Tech JVA. If any of the above conditions precedent are not fulfilled for reasons not attributable to SYFD or before the Hi Tech JV Partners within one (1) year from the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required the Hi Tech JVA save where it is extended by the applicable Issuance Noticeparties for such period of time as the parties shall mutually agree upon, the Hi Tech JVA shall be deemed terminated and shall be null and void and of no further force or effect whatsoever against each other. If any of the conditions precedent are not fulfilled for reasons attributable to the Hi Tech JV Partners, then SYFD is entitled to:
(i) terminate and rescind the Hi Tech JVA without prejudice to such other documents or information remedies as Issuing Bank may reasonably require in connection with the issuance of such Letter of Creditbe available to SYFD; and
(viii) in compensation from the case defaulting Hi Tech JV Partner of a Revolving Loan used in connection with such amount of monies which SYFD would have received towards the financing aggregate Gross Development Value of a Permitted Acquisition (other than a Revolving Loan the land owned by the defaulting Hi Tech JV Partner if the Proposed Hi Tech Joint Venture or such part thereof was completed on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount land owned by the defaulting Hi Tech JV Partner if not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if for the breach of the defaulting Hi Tech JV Partner; or
(Aiii) the aggregate amount remedy of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount specific performance and all reliefs flowing therefrom and without prejudice to any right of Permitted Acquisition Expenses for Permitted Acquisitions SYFD to claim damages for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then breach by the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to defaulting Hi Tech JV Partner. Upon all the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis conditions precedent being fulfilled or waived in writing by SYFD in accordance with Section 6.8(d) after giving effect to the proposed Credit Extensionprovisions of the Hi Tech JVA, the Hi Tech JVA shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; become unconditional and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to completed in the making of any Credit Extension, additional information reasonably satisfactory to manner provided in the requesting party confirming the satisfaction of any Hi Tech JVA (“Effective Date of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesHigh Tech JVA”).
Appears in 1 contract
Sources: Joint Venture Agreement
Conditions Precedent. 9.1 The obligation following are conditions precedent to the obligations of the Underwriters to close the transactions contemplated by this Agreement, which conditions the Corporation covenants to exercise all commercially reasonable efforts to have fulfilled at or prior to the Closing Time and which conditions may be waived in writing in whole or in part by the Underwriters at any time. If any of the conditions are not met, each Lender of the Underwriters may terminate its obligations under this Agreement without prejudice to make any Loanother remedies it may have. At the Closing Time:
(a) the Canadian Final Prospectus shall have been filed with the Securities Commissions and the U.S. Final Prospectus and the Registration Statement shall have been filed with the SEC; the Registration Statement shall have become effective under the U.S. Securities Act; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the SEC; no order having the effect of preventing or suspending the use of any prospectus (including any Issuer Free Writing Prospectus) relating to the Offered Shares shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Securities Commissions or the SEC; and all requests for additional information on the part of the Securities Commissions and the SEC shall have been complied with to the reasonable satisfaction of the Underwriters;
(b) the Underwriters shall have received a certificate, dated the Closing Date, from the Chief Executive Officer and the Chief Financial Officer of the Corporation, or Issuing Bank by such other senior officers satisfactory to issue any Letter the Underwriters, acting reasonably, certifying on behalf of Creditthe Corporation and not in their respective personal capacity and without personal liability, that:
(i) the Corporation has complied with all of the agreements and satisfied all of the conditions on any Credit its part to be performed or satisfied hereunder on or before the Closing Date;
(ii) the representations and warranties of the Corporation contained herein are true and correct as of the Closing Date
(iii) there has been no Material Adverse Effect;
(c) the Underwriters shall have received a certificate, dated the Closing Date, including signed by the Effective Date Secretary of the Corporation or another officer acceptable to the Underwriters in form and substance acceptable to the Underwriters, acting reasonably, with respect to:
(i) the constating documents of the Corporation;
(ii) the resolutions of the directors of the Corporation relevant to the offering, the allotment, issue (or reservation for issue) and sale of the Offered Shares, the authorization of this Agreement and the other agreements and transactions contemplated by this Agreement; and
(iii) the incumbency and signatures of officers of the Corporation who have executed, or will be executing, any documents being provided to the Underwriters hereunder;
(d) the Corporation shall have furnished to the Underwriters evidence that the Offered Shares have been conditionally approved for listing and trading on the TSX and that the Offered Shares purchased at that time will be posted for trading on the TSX and authorized for trading on the NASDAQ on the Closing Date;
(e) the Underwriters shall have received , a letter dated the Closing Date, in form and substance satisfactory to the Underwriters, from KPMG LLP, bringing the information contained in the comfort letter or letters from such auditor referred to in section 3.1(e) hereof forward to the Closing Time, which letter shall use a “cut-off date” not earlier than two business days prior to the Closing Date;
(f) the Underwriters shall have received at the Closing Time a legal opinion from Stikeman Elliott LLP, Canadian counsel to the Corporation, who may rely on, or alternatively provide directly to the Underwriters, the opinions of local counsel acceptable to counsel to the Underwriters, acting reasonably, as to the qualification of the Offered Shares for sale to the public and as to other matters governed by the laws of jurisdictions in Canada other than the provinces in which they are qualified to practice, in form and substance satisfactory to the Underwriters, acting reasonably;
(g) the Underwriters shall have received at the Closing Time an opinion and negative assurance letter of ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the & ▇▇▇▇▇▇▇ Acquisition Closing Date LLP, outside U.S. counsel for the Corporation, in an aggregate principal amount not form and substance satisfactory to exceed $10,000,000 used the Underwriters, acting reasonably, to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if the effect that:
(Ai) the aggregate amount statements in the U.S. Final Prospectus under the heading “Certain U.S. Federal Income Tax Considerations” with respect to the tax considerations under United States federal income tax law, to the extent that they constitute summaries of Permitted Acquisition Expenses exceeds $10,000,000 United States federal statutes, rules and regulations, or portions thereof, fairly summarize the matters described therein;
(Bii) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and Corporation is not yet consummated) exceeds $20,000,000and, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extensionoffering and the sale of the Offered Shares and the application of their proceeds as described in each of the U.S. Final Prospectus, shall will not exceed 5.00:1.00 in respect be, required to be registered as an investment company under the Investment Company Act, and the rules and regulations of Fiscal Quarters ending on or prior to December 25, 2004; and the SEC promulgated thereunder;
(iii) 4.75:1.00 assuming the compliance of the Canadian Prospectuses, including the documents incorporated by reference therein, with the requirements of the securities laws and regulations of the Province of British Columbia and other requirements of Canadian law, the Registration Statement and the U.S. Final Prospectus (other than the financial statements, including schedules, and other financial and statistical information contained therein or omitted therefrom, as to which such counsel need not express any opinion) appear on its face to be appropriately responsive as to form in respect all material respects with the applicable requirements of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall the U.S. Securities Act and the rules and regulations thereunder; the Form F-X, as of its date, appears on its face to be entitled, but not obligated to, request and receive, prior appropriately responsive in all material respects to the making requirements of the U.S. Securities Act;
(iv) the issuance and sale of the Offered Shares by the Corporation, the execution and delivery by the Corporation of this Agreement and the performance by the Corporation of its obligations thereunder will not (1) breach or result in a default under certain agreements, indentures or instruments identified by such counsel on a schedule to its opinion, (2) violate those laws, rules and regulations of the United States of America and the State of New York, in each case which in such counsel’s experience are normally applicable to the transactions of the type contemplated by this Agreement (“U.S. Applicable Law”) or (3) violate any judgments, orders or decrees of any Credit Extension, additional information reasonably satisfactory Governmental Authority binding upon the Corporation identified by such counsel on a schedule to the requesting party confirming the satisfaction of any its opinion. For purposes of the foregoing ifopinion, in the good faith judgment term “Governmental Authority” shall mean any executive, legislative, judicial, administrative or regulatory body of such Agent the State of New York or Requisite Lender such request is warranted under the circumstances.United States of America;
Appears in 1 contract
Sources: Underwriting Agreement (Ballard Power Systems Inc.)
Conditions Precedent. The obligation respective obligations of each Lender the Parties to make any Loancomplete the transactions contemplated by this Agreement, or Issuing Bank and to issue any Letter file with the Registrar a copy of Creditthe Final Order, on any Credit Datea notice of alteration and such other documents as may be required to give effect to the Arrangement, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are will be subject to the satisfaction, or waiver satisfaction of the following conditions:
(a) the Interim Order will have been granted in form and substance satisfactory to Orex;
(b) the Arrangement Resolution will have been passed by the Orex Securityholders in accordance with Section 10.5, the Interim Order;
(c) the Final Order will have been granted in form and substance satisfactory to Orex;
(d) the TSX-V will have conditionally approved the listing of the following New Common Shares and Spinco Shares issuable, distributable and exchangeable, as applicable, under the Arrangement, subject to compliance with the listing requirements of the TSX-V;
(e) the New Common Shares, Spinco Shares, New Orex Options, Spinco Options, New Orex Warrants and Spinco Warrants issuable, distributable and exchangeable, as applicable, pursuant to the Arrangement will be exempt from registration requirements of the 1933 Act pursuant to Section 3(a)(10) thereof;
(f) Orex will have received satisfactory advice from its counsel as to the Canadian tax consequences of the Arrangement to Orex and the Orex Securityholders;
(g) all other material consents, orders and approvals, including any regulatory or judicial approvals or orders, that Orex considers necessary or desirable to effect the Arrangement will have been obtained or received from the Persons, authorities or bodies having jurisdiction in the circumstances on terms and conditions precedent:that are acceptable to Orex;
(h) no order or decree restraining or enjoining the consummation of the Arrangement or any of the other transactions contemplated by this Agreement will be in force immediately before the Effective Time;
(i) Administrative Agent shall the Orex Board will have received a fully executed and delivered Funding Notice or Issuance Notice, as determined to proceed with the case may beArrangement having considered the number of Orex Securities in respect of which Dissent Rights have been exercised;
(iij) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall Spinco Reorganization will have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Creditcompleted; and
(vik) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount this Agreement will not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to terminated under Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on 4.2 or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesotherwise.
Appears in 1 contract
Sources: Arrangement Agreement
Conditions Precedent. The obligation of This Amendment shall not be effective until each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedenthave been satisfied, as determined by the Lender in its discretion:
(i) Administrative Agent 5.1 The Lender shall have received counterparts of this Amendment duly executed by each of the parties hereto.
5.2 The Lender shall have received a fully executed copy of the Pledge Agreement.
5.3 All corporate and delivered Funding Notice or Issuance Noticeshareholder action on the part of the Borrower necessary for the valid execution, as delivery and performance by the case may be;Borrower of this Amendment shall have been duly and effectively taken and evidence thereof reasonably satisfactory to the Lender shall have been provided to the Lender.
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date5.4 After giving effect to this Amendment, the representations and warranties contained herein and in the Loan Agreement and the other Credit Loan Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent date hereof, as though made on and as of that date, such date (except to the extent that such representations and warranties specifically relate solely to an earlier date, in which case such representations and warranties they shall have been be true and correct in all material respects on and as of such earlier date;).
(iv) as of such Credit Date5.5 After giving effect to this Amendment and the Initial Eyefly Investment, no event Default or Event of Default shall have occurred and be continuing or would on the date hereof, nor shall result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;transactions contemplated herein.
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent 5.6 The Lender shall have received all other information required the Eyefly Operating Agreement duly executed by each of the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with parties hereto.
5.7 Assuming the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan entire Eyefly Investment were made on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)Eighth Amendment Effective Date, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to immediately before and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating after giving effect to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined Eyefly Investment and on a pro forma basis in accordance with Section 6.8(d) after giving effect for each of the twelve months thereafter Availability is greater than $3,000,000. The Borrower shall deliver to the proposed Credit ExtensionLender evidence of satisfaction of the conditions set forth above on a basis (including, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or without limitation, giving due consideration to results for prior to December 25, 2004; and (iiiperiods) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any Lender.
5.8 The Borrower shall have paid in full all reasonable costs and expenses of the foregoing ifLender (including, without limitation, reasonable attorneys’ fees) in connection with the good faith judgment preparation, negotiation, execution and delivery of such Agent or Requisite Lender such request is warranted under the circumstancesthis Amendment.
Appears in 1 contract
Conditions Precedent. The obligation of each In addition to the other conditions precedent herein set forth, if any Lender to make any Loanbecomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Bank will not be required to issue any Letter of CreditCredit or to amend any outstanding Letter of Credit to increase the face amount thereof, on any Credit Datealter the drawing terms thereunder or extend the expiry date thereof, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing DateSwingline Lender will not be required to make any Swingline Loan, are subject to unless the satisfaction, Issuing Bank or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance NoticeSwingline Lender, as the case may be;, is satisfied that any exposure that would result therefrom is fully covered or eliminated by any combination satisfactory to the Issuing Bank or Swingline Lender of the following:
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vii) in the case of a Revolving Loan used Defaulting Lender, the LC Exposure and the Swingline Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit and Swingline Loans, to the Non-Defaulting Lenders as provided in connection with clause (1) of Section 2.15(c);
(ii) in the financing case of a Permitted Acquisition (other than Defaulting Lender or a Revolving Potential Defaulting Lender, without limiting the provisions of Section 2.15(b), the Borrower Cash Collateralizes the obligations of the Borrower in respect of such Letter of Credit or Swingline Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not at least equal to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; and
(Biii) in the aggregate case of a Defaulting Lender or a Potential Defaulting Lender, then in the case of a proposed issuance of a Letter of Credit or making of a Swingline Loan, by an instrument or instruments in form and substance satisfactory to the Administrative Agent, and to the Issuing Bank and the Swingline Lender, as the case may be, the Borrower agrees that the face amount of Permitted Acquisition Expenses for Permitted Acquisitions for such requested Letter of Credit or the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer principal amount of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating such requested Swingline Loan will be reduced by an amount equal to the satisfaction unreallocated, non-Cash Collateralized portion thereof as to which such Defaulting Lender or Potential Defaulting Lender would otherwise be liable, in which case the obligations of Administrative Agent that, as the Non-Defaulting Lenders in respect of such Letter of Credit Dateor Swingline Loan will, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered subject to the Lenders pursuant to Section 5.1(b)first proviso below, determined be on a pro forma rata basis in accordance with the Commitments of the Non-Defaulting Lenders, and the pro rata payment provisions of Section 6.8(d2.13 will be deemed adjusted to reflect this provision; provided that (a) after giving effect to the proposed sum of each Non-Defaulting Lender’s total Revolving Credit ExtensionExposure, shall total Swingline Exposure and total LC Exposure may not in any event exceed 5.00:1.00 in respect the Commitment of Fiscal Quarters ending on or prior to December 25such Non-Defaulting Lender, 2004; and (iiib) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making reduction will constitute a waiver or release of any Credit Extensionclaim the Borrower, additional information reasonably satisfactory the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesbe a Non-Defaulting Lender.
Appears in 1 contract
Conditions Precedent. (A) The obligation of each Lender the Lenders to execute and deliver this Amendment and to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including Advance after the Amendment Effective Date and under the ▇▇▇▇▇▇ Acquisition Closing Date, are Credit Agreement as amended hereby is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedentfollowing:
(ia) Administrative Agent this Amendment shall have received a fully been executed and delivered Funding Notice or Issuance Noticeby an authorized officer of Parent, as the case may beBorrower and each other Loan Party;
(iib) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and each Loan Document are correct in all material respects on and as of that Credit Date the Amendment Effective Date, before and after giving effect to this Amendment, such Borrowing or issuance and to the same extent application of the proceeds therefrom, as though made on and as of that date, except to the extent such date other than any such representations and or warranties specifically relate in all material respects that, by their terms, refer to an earlier datea specific date other than the date of this Amendment, such Borrowing, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier specific date;; and
(ivc) as of such Credit Date, no event shall have occurred and be continuing continuing, or would result from such Borrowing or issuance or from the consummation application of the applicable Credit Extension proceeds therefrom, that would constitute an Event of Default or constitutes a Default.
(B) The obligation of the Lenders to make Advances to the Borrower after the Amendment Effective Date to fund the Accura Acquisition in accordance with the Credit Agreement as amended hereby is subject to the following (in addition to the conditions precedent set forth in Section 3(A) above):
(a) the Lenders shall be satisfied that the assets and earnings of the Borrower immediately following the Accura Acquisition contemplated hereby will be sufficient to support the Obligations of the Borrower under the Credit Agreement, the Notes and the other Loan Documents and the timely amortization of all Debt and other Obligations of the Borrower;
(vb) the Accura Acquisition shall have been consummated in accordance with the terms of the Accura Acquisition Documents, without any waiver or amendment of any material term, provision or condition set forth therein not consented to by the Agent and the Required Lenders and in compliance with all applicable laws;
(c) the Parent Contribution shall have been made, the proceeds of which shall be used to consummate the Accura Acquisition, and the Parent Subordinated Note shall have been pledged to the Collateral Agent for the benefit of the Secured Parties pursuant to the Parent Pledge Agreement, as amended; and
(d) the Agent shall have received on or before the date of issuance such Borrowing, each dated as of the Accura Acquisition Closing Date (unless otherwise specified), in form and substance satisfactory to the Agent (unless otherwise specified) and in sufficient copies for each Lender and Agent and Agent's counsel and to the extent reasonably necessary to evidence the Borrowing to fund the Accura Acquisition, the addition of any Letter Subsidiary Guarantor and to perfect the first priority security interest of Creditthe Secured Parties and Collateral Agent in the assets of the Borrower and its Subsidiaries, Administrative Agent shall have received all other information the documents required to be delivered pursuant to Section 3.03 of the Credit Agreement, including, without limitation:
(i) a supplement to the Credit Agreement duly executed by Accura, Precise Canada and the applicable Issuance NoticeAcquisition Sub, together with amended schedules to the Credit Agreement;
(ii) a Security Agreement duly executed by Accura, Precise Canada and the Acquisition Sub in favor of the Secured Parties and an Amendment to the Parent Pledge Agreement duly executed by Parent in favor of the Secured Parties, together with (A) appropriate executed UCC-1 financing statements and/or the Canadian equivalent and, if necessary, any amendments to existing UCC-1 financing statements, (B) certificates representing the Accura Stock and the capital stock of the Acquisition Sub and Precise Canada, accompanied, in each case, by undated stock powers executed in blank, and such other documents the Parent Subordinated Note, duly endorsed in blank, (C) duly executed copies in proper form, to be filed by Stikeman, Elliot or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) its local agent in the case of a Revolving Loan used in connection Accura and the Acquisition Sub, of all recordings and filings of or with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating respect to the satisfaction of Administrative Agent thatSecurity Agreement and the Parent Pledge Agreement, as of such Credit Dateamended, that the Leverage Ratio as Collateral Agent may deem necessary or desirable in order to perfect and protect the Liens created thereby and (D) evidence of the last day insurance for Accura required by the terms of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and Security Agreement;
(iii) 4.75:1.00 an Intellectual Property Security Agreement duly executed by Accura, Precise Canada and the Acquisition Sub in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any favor of the foregoing ifSecured Parties;
(iv) a Guaranty duly executed by Accura, Precise Canada and the Acquisition Sub in favor of the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.Secured Parties;
Appears in 1 contract
Conditions Precedent. (a) The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date agreements contained herein and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, amendments contemplated hereby shall not be effective unless each of the following conditions precedentprecedent is satisfied:
(i1) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization All of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties made by Borrower in Section 6 hereof shall be true and correct; and
(2) Bank shall receive in form and substance satisfactory to Bank, a Certificate of Officer of Borrower and Guarantor, as to the satisfaction of the condition specified in paragraph (1) of this Section 7(a);
(3) Execution and delivery of the IP Security Agreements and UCC-3 Financing Statements related thereto;
(4) Borrower's payment of the Loan Fee;
(5) Delivery of corporate resolution authorizing the consummation by Borrower and the Guarantor of the transactions contemplated hereby;
(6) Delivery of a Certificate of an Officer of Borrower stating that no changes have occurred with respect to Borrower's Certificate of Good Standing issued by the State of Georgia and Borrower's Certificate of Authority to transact business issued by the states of Tennessee and Texas, since the respective dates of issuance thereof;
(7) Delivery of a Certificate of an Officer of Guarantor stating that no changes have occurred with respect to Guarantor's Certificate of Good Standing issued by the State of Ohio and Guarantor's Certificate of Authority to transact business issued by the State of Georgia, since the respective dates of issuance thereof;
(8) Bank shall have received, in form and substance satisfactory to Bank, such other documents as Bank shall deem necessary and/or appropriate. Upon satisfaction of each of the conditions precedent set forth in this Section 6, the agreements contained herein and the amendments contemplated hereby shall be deemed effective as of the date hereof.
(b) From and after the satisfaction of the conditions precedent set forth in Section 7(a) hereof, Bank's obligations to make any Advances to Borrower under the Loan Agreement and the other Credit Loan Documents shall be subject to the additional conditions that (i) all of the representations and warranties made by Borrower herein, whether directly or incorporated herein by reference, shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, immediately prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any time of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.proposed Advance as
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Conditions Precedent. The obligation of This First Amendment Agreement shall not become effective until, and shall become effective on, the business day when each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedentshall have been satisfied:
(ia) Administrative Agent The Holders shall have received a fully this First Amendment Agreement, duly executed and delivered Funding Notice or Issuance Notice, as the case may be;by each Obligor.
(iib) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments The Required Holders shall not exceed the Revolving Commitments then in effect;have consented to this First Amendment Agreement as evidenced by its execution hereof.
(iiic) as of such Credit Date, the The representations and warranties contained herein and of the Obligors set forth in the other Credit Documents Section 3 hereof shall be true and correct in all material respects on and as of that Credit Date the date of the execution and delivery of this First Amendment Agreement.
(d) Any consents or approvals from any holder or holders of any outstanding security of any Obligor or any Subsidiary and any amendments of agreements pursuant to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall any securities may have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event issued which shall have occurred and be continuing or would result from necessary to permit the consummation of the applicable Credit Extension that would constitute an Event of Default transactions contemplated hereby shall have been obtained and all such consents or a Default;amendments shall be reasonably satisfactory in form and substance to the Holders and their special counsel.
(ve) on or before the date of issuance of any Letter of Credit, Administrative Agent The Obligors shall have received all other information required by paid the applicable Issuance Noticefees and disbursements of the Holders’ special counsel, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay and ▇▇▇▇▇▇ Acquisition Financing Requirements)LLP, if (A) incurred in connection with the aggregate amount negotiation, preparation, execution and delivery of Permitted Acquisition Expenses exceeds $10,000,000 or (B) this First Amendment Agreement and the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for transactions contemplated hereby which fees and disbursements are reflected in the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as statement of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been special counsel delivered to the Lenders pursuant Company at the time of the execution and delivery of this First Amendment Agreement. UTi Worldwide Inc. First Amendment Agreement
(f) All corporate and other proceedings in connection with the transactions contemplated by this First Amendment Agreement and all documents and instruments incident to Section 5.1(b)such transactions shall be satisfactory to you and your special counsel, determined on and you and your special counsel shall have received all such counterpart originals or certified or other copies of such documents as you or they may reasonably request.
(g) Each Holder shall have received a pro forma basis in accordance with Section 6.8(d) after giving effect fully executed copy of the letter dated 5 June 2013 from Commerzbank Aktiengesellschaft to the proposed Company which amends the Agreement relating to Credit ExtensionFacility dated 25 January 2013, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; a form which is satisfactory in form and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior substance to the making Required Holders (the “Amendment to Commerzbank Facility”).
(h) Each Holder shall have received a fully executed copy of any Credit Extensionthe Letter Agreement dated May 30, additional information reasonably 2013 between Sumitomo Mitsui Banking Corporation and the Company which amends the Loan Agreement dated October 17, 2012, in a form which is satisfactory in form and substance to the requesting party confirming Required Holders (the satisfaction of any “Amendment to Sumitomo Bank Facility”).
(i) Each Holder shall have received a fully executed copy of the foregoing ifFirst Amendment to Amended and Restated Letter of Credit and Cash Draw Agreement dated as of June 5, 2013 between Nedbank Limited, acting through its London Branch, and the Company which amends the Amended and Restated Letter of Credit and Cash Draw Agreement, dated as of June 24, 2011, in a form which is satisfactory in form and substance to the good faith judgment Required Holders (the “Amendment to Nedbank Facility”).
(j) Each Holder shall have received a fully executed copy of such Agent or Requisite Lender such request the First Amendment to Amended and Restated Letter of Credit Agreement dated June 5, 2013 between The Royal Bank of Scotland N.V. and the Company which amends the Amended and Restated Letter of Credit Agreement, in a form which is warranted under satisfactory in form and substance to the circumstancesRequired Holders (the “Amendment to RBS Facility”).
(k) Each Holder shall have received a fully executed copy of the Amendment No. 1 to Credit Agreement dated June 5, 2013 between Bank of the West and the Company which amends the Credit Agreement dated as of June 24, 2011, in a form which is satisfactory in form and substance to the Required Holders (the “Amendment to Bank of the West Facility”).
Appears in 1 contract
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date amendments described in this Amendment and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver obligations of Lender set forth in accordance with Section 10.5, this Amendment will not be effective unless and until each of the following conditions precedentprecedent have been satisfied, in form, manner and substance satisfactory to Lender:
(a) Borrower shall have delivered or caused to be delivered to Lender the following documents, all of which shall be properly completed, executed and otherwise satisfactory to Lender:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may bethis Amendment;
(ii) after making A corporate resolution from the Credit Extensions requested on such Credit DateBoard of Directors of each entity constituting Borrower (and from the Shareholders, if necessary) approving the Total Utilization transactions contemplated thereby and the execution and delivery of Revolving Commitments shall not exceed the Revolving Commitments then in effectthis Amendment;
(iii) as A certificate of Borrower's president and corporate assistant secretary attesting to the facts that (A) the corporate resolutions set forth in Section 9(a)(ii) above have not been modified or revoked and remain in full force and effect; and (B) the by-laws of such Credit DateBorrower have not changed from the date of the last such certification, or attaching any amendments thereto.
(iv) Such amendments to Lender's existing financing statements and such new financing statements in Lender's favor as Lender deems necessary; and
(v) Such other items as Lender may require;
(b) Lender shall have received a certificate of corporate status with respect to each Borrower, dated within ten (10) days of the date thereof, from the Secretary of State or other appropriate governmental authority of the state or country of incorporation of each Borrower, which certificate shall indicate that each Borrower is in good standing in such jurisdiction, together in each case with a certified copy of the articles of incorporation of each Borrower from such governmental authority;
(c) After giving effect to this Amendment, there shall not then exist an Event of Default;
(d) All the representations and warranties contained herein and of the Loan Parties in the other Credit Loan Documents as amended thereby shall be true and correct correct, in all material respects on respects, before and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extensionthis Amendment;
(e) Lender shall have reviewed and approved a current UCC and judgment search on each Borrower;
(f) Borrower has paid to Lender the Amendment Fee or in lieu thereof the fee has been paid to Lender by an advance by Lender against the Total Facility;
(g) Lender shall have received a recent orderly liquidation value appraisal of Borrower's Equipment calculated at the lower of cost or market value, additional information reasonably satisfactory on a first-in, first-out basis, performed by one or more appraisers acceptable to Lender; and
(h) Borrower shall have paid all reasonable closing costs, recording fees and taxes, appraisal fees and expenses, travel expenses, fees and expenses of Lender's counsel, and all other costs and expenses incurred by Lender in connection with the requesting party confirming preparation of this Amendment, which costs, fees and expenses may be paid to Lender by an advance by Lender against the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesTotal Facility.
Appears in 1 contract
Conditions Precedent. The obligation This Amendment No. 2 shall become effective as of the first date (the “Amendment No. 2 Effective Date”) when each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and conditions set forth in this Section 6 shall have been satisfied; provided that the ▇▇▇▇▇▇ Acquisition Closing Date, are subject amendments to the satisfaction, or waiver in accordance with Section 10.5, Credit Agreement contemplated herein will be effective immediately after the effectiveness of the following conditions precedentAmended Intercreditor Agreement:
(ia) The Administrative Agent shall have received (i) evidence that the Second Lien Notes Trustee (as defined in the First Lien/Second Lien Intercreditor Agreement) has executed the Intercreditor Amendment, (ii) a fully duly authorized, executed and delivered Funding Notice or Issuance Notice, as counterpart of the case may be;
(ii) after making signature page to this Amendment No. 2 from each Loan Party named on the Credit Extensions requested on such Credit Datesignature pages hereto, the Total Utilization of Revolving Commitments Administrative Agent and the 2016 Refinancing Term Lenders (which shall not exceed include Existing Lenders constituting the Revolving Commitments then in effect;
Required Lenders immediately prior to giving effect to this Amendment No. 2) and (iii) a duly authorized, executed and delivered copy of the Fifth Supplemental Indenture dated as of such the date hereof.
(b) All costs, fees and expenses (including, without limitation, legal fees and expenses) contemplated and to the extent required by the Credit Agreement and the Engagement Letter to which the Borrower is a party and which are payable to the Refinancing Arranger (or any other 2016 Refinancing Term Lender) or the Administrative Agent shall have been paid to the extent due. All accrued interest on, and any amounts owing under Section 2.13 of the Credit Agreement with respect to, the Initial Term Loans outstanding immediately prior to the Amendment No. 2 Effective Date, whether or not due and payable, shall have been paid in full. The Soft Call Premium with respect to all Existing Term Loans, including, for the avoidance of doubt, Existing Term Loans of Exchanging Term Lenders, shall have been paid in full in cash.
(c) No Default or Event of Default shall have occurred or be continuing, or would occur immediately after giving effect to the incurrence of the 2016 Refinancing Term Loans.
(d) Each of the representations and warranties contained herein and made by any Loan Party set forth in the other Credit Documents Section 5 hereof shall be true and correct in all material respects (provided that, any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of that Credit the Amendment No. 2 Effective Date to with the same extent effect as though made on and as of that such date, except to the extent such representations and warranties specifically expressly relate to an earlier date, date (in which case such representations and warranties shall have been be true and correct in all material respects (or if any such representation and warranty is qualified by “materiality,” “material adverse effect” or similar language, shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of such earlier date;).
(ive) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, The Administrative Agent shall have received all other information required a Borrowing Request meeting the requirements of Section 2.03 of the Credit Agreement for the 2016 Refinancing Term Loans.
(f) The Administrative Agent shall have received a certificate of the Borrower, dated the Amendment No. 2 Effective Date, executed by a Responsible Officer of the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection Borrower certifying compliance with the issuance requirements set forth in clauses (c) and (d) of such Letter of Credit; andthis Section 6.
(vig) in On the case Amendment No. 2 Effective Date, the Administrative Agent shall have received a customary opinion of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇Ropes & ▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)LLP, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating counsel to the satisfaction of Loan Parties addressed to the Administrative Agent that, as of such Credit Date, and the Leverage Ratio as of 2016 Refinancing Term Lenders and dated the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal QuartersAmendment No. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.2
Appears in 1 contract
Conditions Precedent. The obligation of each the Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including fund the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Loan hereunder is subject to the satisfaction, or waiver in accordance with Section 10.5, fulfillment of the following conditions precedentprecedent prior to the proposed date of the proposed Loan funding (except as otherwise indicated below) and the continued fulfillment of such conditions:
(ia) Administrative Agent Lender shall have received a fully from Borrower (i) an executed Note(s) and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) an executed counterpart of this Loan Agreement.
(b) Borrower shall prepare and file, not later than 45-days after making the Credit Extensions requested date of this Loan Agreement, on such Credit Datebehalf of the Lender all documents and take all other reasonable actions necessary under applicable law to perfect Lender's interest in the Collateral. This condition precedent shall not be a requirement of funding on the schedule outlined in paragraph 1.1 above.
(c) As of the date hereof no fact or condition exists that would (or could, with the passage of time, the Total Utilization giving of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iiinotice, or both) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default under this Loan Agreement or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, Loan Documents.
(d) A representative of Tetra House Pte. Ltd. shall be appointed to Borrower’s Board of Directors and shall also be appointed to the Oversight Committee of the Board. Such appointment shall be until the earlier of the next annual meeting of shareholders of Borrower or for one year.
(e) Borrower shall use its best efforts to secure the agreement of Stockholders representing ninety percent (90%) of the “Series D Liquidation Preference Amount” (as defined in the good faith judgment Certificate of such Agent or Requisite Designation of the Series D Convertible Preferred stock) of the Series D Preferred share class of Borrower to agree to convert their Series D Preferred Shares into Common Stock of Borrower by February 1, 2013. In the event that the Borrower fails to meet the condition precedent in this Section 6(e) and subject to Section 5 herein, Lender such request is warranted under may, at its sole discretion, purchase the circumstancesBorinquen Royalty (as defined below) being repurchased with proceeds of the Loan. Upon Lender’s purchase of the Borinquen Royalty (as defined below), Lender shall immediately forgive Ten Million Seven Hundred Thirty Nine Thousand Four Hundred Twenty Six U.S. Dollars ($10,739,426.00) of the Loan Principal.
Appears in 1 contract
Conditions Precedent. 3.1 The obligation obligations of each Lender Party to make any Loaneffect Completion shall be conditional upon satisfaction or waiver of the following conditions, or Issuing Bank their satisfaction subject only to Completion:
(a) approval by way of ordinary resolutions at the EGM (by a simple majority of the votes cast by the Shareholders entitled to vote and present at the EGM (in person (or if a corporate, by authorised representative) or by proxy) (other than those who are required by the HKSE and / or the Listing Rules to abstain from voting) in respect of the issue and allotment of the Warrants and the Warrant Shares and the granting of authority to the Board to deal with all related matters and such approval remaining valid and effective);
(b) the HKSE having approved the Warrants prior to its issue or grant and the Listing Committee of the HKSE having granted the approval for the listing of and the permission to deal in all the Warrant Shares, and such approval remains valid and effective;
(c) the Issuer having complied with all of its obligations under this Agreement;
(d) no order or judgment of any Letter court or governmental, statutory or regulatory body having been issued or made prior to Completion (and no legal or regulatory requirements remaining to be satisfied) which has the effect of Creditmaking unlawful or otherwise prohibiting the Subscription or any transactions contemplated by the Warrant Documents;
(e) no litigation, action, suit, investigation, claim or proceeding challenging the legality of, or seeking to restrain, prohibit or materially modify, the Subscription or any transactions provided for by the Warrant Documents having been instituted and not settled or otherwise terminated;
(f) there has been no occurrence of a Material Adverse Change on or prior to Completion;
(g) the Warranties remaining true and accurate in all respects and not misleading in any Credit respect on the Completion Date, including and no event has occurred and no matter has arisen which would render any of the Effective Date and Warranties untrue, inaccurate or misleading; and
(h) the ▇▇▇▇▇▇ Acquisition Closing Dateconditions precedent under the Share Subscription Agreement, other than the conditions precedent that by their nature are to be satisfied at the completion of the Share Subscription Agreement but subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, of such conditions at the completion of the following conditions precedent:Share Subscription Agreement, having been fulfilled or, as applicable, waived.
3.2 The Subscriber may waive (in whole or in part, whether conditionally or unconditionally) any of the Conditions Precedent (except for Clauses 3.1(a) and 3.1(b)), provided that any such waiver shall be without prejudice to the Subscriber’s right under this Agreement to elect to treat any further or other such breach, failure or event as releasing and discharging the Subscriber from its obligations to subscribe for the Warrants under this Agreement. The Issuer may not waive any of the Conditions Precedent.
3.3 The Issuer undertakes to use its best endeavours to ensure that the Conditions Precedent are fulfilled as soon as reasonably practicable after the date of this Agreement (and in any event before the Long Stop Date). Each Party shall furnish such information, supply such documents, pay such fees and do all such acts and things as may be reasonably required by the other Party or any relevant Authority in connection with the fulfilment of the Conditions Precedent to which it is responsible.
3.4 Without limiting the generality of Clause 3.3, in connection with the Condition Precedent set out in Clause 3.1(a):
(a) the Issuer shall use its reasonable endeavours to: (i) Administrative Agent prepare, finalise and post a circular to its Shareholders and/or such other announcements, documents, notices and communications as may be required by applicable Law (including the Listing Rules) and the Constitution, in each case, subject to clearance of the same (if required) by the HKSE, as soon as practicable, which shall, amongst other things, convene the EGM to consider resolutions to be passed by the relevant Shareholders for the purposes set out in Clause 3.1(a); and (ii) hold the EGM as soon as practicable;
(b) the Issuer undertakes to provide the Subscriber (or advisers nominated by the Subscriber) with draft copies of all circulars, announcements, documents, notices and other communications to be sent to the Shareholders as referred to in Clause 3.4(a) at such time as will allow the Subscriber a reasonable opportunity to provide comments on the relevant draft circulars, announcements, documents, notices and other communications before they are finalised and despatched or released; and
(c) subject to the requirements under applicable Laws (including the Listing Rules) and the Constitution, the Issuer undertakes and agrees to take into account in good faith any reasonable comments provided by the Subscriber in relation to any circulars, announcements, documents, notices and other communications proposed to be despatched or released to the extent they relate to the transactions contemplated by the Warrant Documents.
3.5 Without limiting the generality of Clause 3.3, in connection with the Conditions Precedent set out in Clauses 3.1(a) and 3.1(b):
(a) as soon as reasonably practicable after the date of signing of this Agreement, the Issuer shall file, or shall procure the filing of, the notices and applications necessary to satisfy such Conditions Precedent;
(b) the Issuer and the Subscriber shall supply as promptly as practicable any additional information and documentary material that may be requested by the HKSE in connection with such Conditions Precedent;
(c) to the extent permissible under applicable Laws, the Issuer shall as soon as reasonably practicable notify the Subscriber of any written communication from the HKSE in relation to satisfying such Conditions Precedent;
(d) the Issuer shall, to the extent permissible under applicable Laws and to the extent practicable and as soon as it becomes practicable, provide copies of any proposed communication with the HKSE in connection with such Conditions Precedent to the Subscriber, together with any supporting documentation or information reasonably requested by the Subscriber, and shall, to the extent practicable, take due consideration of any reasonable comments that the Subscriber may have in relation to such proposed communication prior to making it;
(e) subject to the Issuer’s consent (which shall not be unreasonably withheld or delayed), the Subscriber shall have received a fully executed the right to send its representatives (including external advisers) to attend the Issuer’s meetings with the HKSE in relation to such Conditions Precedent, provided that the HKSE has agreed thereto; and
(f) each of the Issuer and delivered Funding Notice the Subscriber shall not take (and shall refrain from taking) any action which may delay, impede or Issuance Noticeprejudice the satisfaction of such Conditions Precedent.
3.6 The Issuer shall, not later than the Business Day after being notified in writing by the HKSE that the approval for the listing of, and permission to deal in, the Warrant Shares has been granted, give written notice to the Subscriber.
3.7 If the Conditions Precedent have not been fulfilled (or, as the case may be;
(ii, waived) after making by the Credit Extensions requested on such Credit Long Stop Date, the Total Utilization Subscriber may (by notice in writing to the Issuer) terminate this Agreement whereupon this Agreement (save and except the Surviving Provisions, which shall survive termination of Revolving Commitments this Agreement) shall not exceed lapse immediately thereafter and be of no further effect, but (for the Revolving Commitments then avoidance of doubt) all rights and liabilities of the Parties which have accrued before termination shall continue to exist.
3.8 Each Party undertakes to disclose in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in writing to the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in Party anything which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing will or would result from the consummation may prevent any of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending Conditions Precedent from being satisfied on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders the Long Stop Date promptly after it comes to its notice.
3.9 The Issuer shall be entitled, but not obligated to, request and receive, prior deliver to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming Subscriber reasonable evidence for the satisfaction of any of the foregoing if, Conditions Precedent in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesClause 3.1 as soon as reasonably practicable after its fulfilment.
Appears in 1 contract
Sources: Warrant Subscription Agreement
Conditions Precedent. The obligation This Waiver shall become effective on and as of the date on which each of the following conditions precedent is satisfied in full (such date, the “Waiver Effective Date”):
(a) Credit Suisse shall have received this Waiver, duly executed and delivered by a duly authorized Responsible Officer of each Lender to make any Loanof Holdings and Borrower;
(b) Credit Suisse shall have received this Waiver, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including duly executed and delivered by Lenders constituting the Effective Date Required Lenders and the Majority Revolving Credit Facility Lenders;
(c) The Borrower shall have paid to ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Acquisition Closing Date, are subject LLC and to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the Akin Gump ▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)& ▇▇▇▇ LLP (“Akin Gump”) their outstanding reasonable fees and out-of-pocket expenses incurred in connection with the Credit Agreement, if (A) this Waiver, any other documents prepared in connection herewith and the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 transactions contemplated hereby, to the extent invoiced on or (B) before the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions Waiver Effective Date, excluding amounts previously paid to the Administrative Agent for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to account of Akin Gump and not yet consummatedpaid to Akin Gump;
(d) exceeds $20,000,000, then the Chief Financial Officer of Holdings Borrower shall have paid to Credit Suisse for the account of each Lender that shall have executed and delivered a Compliance Certificate representing and warranting and otherwise demonstrating counterpart hereof prior to the satisfaction of Administrative Agent that12:00 P.M. (Eastern) on October 29, as of such Credit Date2008, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered waiver fee (if any) payable to the Lenders such Lender pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d7;
(e) after giving effect Borrower shall have entered into an amendment to the proposed Credit ExtensionReceivables Sale Agreement dated as of September 26, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior 2007, among Tronox Funding LLC, Tronox Worldwide LLC, ABN Amro Bank N.V., as Agent, the Committed Purchasers from time to December time party thereto and Amsterdam Funding Corporation, extending such agreement to November 25, 20042008 and shall have received a waiver of any defaults or events of default that have occurred or may be expected to occur thereunder; and
(f) Credit Suisse shall have received the appraisal report prepared by Accuval Associates, Inc. (the “Accuval Report”) for and (iii) 4.75:1.00 in with respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request to Borrower and receive, prior any supporting documentation relating to the making of any Credit ExtensionAccuval Report, additional information reasonably satisfactory it being understood that the Accuval Report and supporting documentation are subject to the requesting party confirming the satisfaction confidentiality provisions of any Section 10.14 of the foregoing if, in Credit Agreement. Credit Suisse agrees to make the good faith judgment of such Agent or Requisite Accuval Report available to any other Lender such request is warranted under the circumstancesupon request.
Appears in 1 contract
Sources: Credit Agreement (Tronox Inc)
Conditions Precedent. The obligation obligations of each Lender Buyer to make any Loanpurchase the Property pursuant to this Agreement shall, or Issuing Bank to issue any Letter at the option of CreditBuyer, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are be subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed 10.1.1. All of the representations, warranties and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization agreements of Revolving Commitments shall not exceed the Revolving Commitments then Seller set forth in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents this Agreement shall be true and correct in all material respects on as of the date hereof and as of that Credit Date the Closing Date, and Seller shall not have on or prior to the same extent Closing Date, failed to meet, comply with or perform in any material respect any covenants or agreements on Seller’s part as though made required by the terms of this Agreement.
10.1.2. There shall be no material change in the matters reflected in the Title Documents, and there shall not exist any encumbrance or title defect affecting the Real Property not described in the Title Documents except for the Permitted Exceptions or matters to be satisfied at the Closing Date.
10.1.3. No Major Tenant shall be in material default under its Lease nor shall any Major Tenant have given notice that it is discontinuing operations at the Real Property nor shall a Major Tenant filed bankruptcy or sought any similar debtor protective measure or be the subject of an involuntary bankruptcy.
10.1.4. Seller shall obtain and deliver to Buyer, no later than five (5) days prior to Closing Date, (a) estoppel certificates and subordination, nondisturbance and attornment agreements (“SNDAs”) from all tenants occupying 5,000 square feet or more (each, a “Major Tenant”), (b) SNDAs and estoppel certificates from other tenants sufficient so that the Seller has delivered estoppel certificates and SNDAs from tenants representing in the aggregate, at least ninety percent (90%) of the occupied square footage of the Real Property and (c) estoppel certificates from all parties to or owners of property subject to any reciprocal construction, easement, operating or similar agreement affecting the Property and from the declarant, architectural committee and/or association, as applicable, under any declaration of covenants, conditions or restrictions affecting the Property, in all cases on forms provided by (or otherwise approved by) Buyer dated no earlier than thirty (30) days prior to the Closing Date. The matters certified in the estoppel certificates and any modifications to the SNDA forms shall be subject to Buyer’s reasonable approval. Buyer shall notify Seller within three (3) days before the Closing Date of Buyer’s approval or disapproval and the basis of such disapproval, if disapproved. Buyer’s approval of the foregoing shall not be unreasonably withheld. If Buyer disapproves of any estoppel certificate or SNDA, and Seller is unable to deliver, in Buyer’s good faith business judgment, a reasonably acceptable estoppel certificate or SNDA (as the case may be) prior to the Closing Date, the Buyer shall have the right to terminate this Agreement and to obtain a refund of the Deposit without any further action required by any party, and neither party shall have any further obligation to the other.
10.1.5. If any Tenant security deposit is in a form other than cash, the instrument constituting the security deposit must be reissued in Buyer’s name as of that date, except the Closing Date or else a cash escrow equal to the extent amount of the security deposit will be established at the Closing Date until the instrument is reissued in Buyer’s name. Prior to such representations and warranties specifically relate time of reissue, Buyer shall be entitled to an earlier datedraw from such cash escrow in the event the terms of the relevant lease entitle the Buyer, as landlord, to draw on the non-cash deposit. The provisions of this section shall survive the Closing Date.
10.1.6. There shall be no material change in which case such representations and warranties the zoning classification or the zoning ordinances or regulations affecting the Property from that existing as of the conclusion of the Due Diligence Period.
10.1.7. Except as disclosed in the Due Diligence Items, on the Closing Date, no material action or proceeding shall have been true instituted or be threatened before any court or governmental authority (A) that relates to the Property and correct affects the Property after the Closing Date or (B) that seeks to restrain or prohibit, or to obtain substantial damages in all material respects on and as of such earlier date;
(iv) as of such Credit Daterespect of, no event shall have occurred and be continuing or would result from which is related to or arises out of, this Agreement or the consummation of the applicable Credit Extension transactions contemplated herein, unless Seller has demonstrated, to Buyer’s reasonable satisfaction, that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, costs and such other documents or information as Issuing Bank may reasonably require liabilities to be incurred in connection with such matters are fully covered by Seller’s insurance.
10.1.8. As of the issuance Closing Date, Seller shall not have commenced (within the meaning of such Letter of Credit; and
(viany Bankruptcy Law) in a voluntary case, nor shall there have been commenced against Seller an involuntary case, nor shall Seller have consented to the case appointment of a Revolving Loan used in connection with the financing Custodian of it or for all or any substantial part of its property, nor shall a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date court of competent jurisdiction have entered an order or decree under any Bankruptcy Law that is for relief against Seller in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)involuntary case or appoints a Custodian of Seller for all or any substantial part of its property. The term “Bankruptcy Law” means Title 11, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 U.S. Code, or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions any similar state law for the previous four Fiscal Quarters (together with relief of debtors. The term “Custodian” means any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000receiver, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent thattrustee, as of such Credit Dateassignee, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on liquidator or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of similar official under any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesBankruptcy Law.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Grubb & Ellis Healthcare REIT, Inc.)
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank provide the Loan to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Borrower contemplated in Section 1.1 shall be subject to the satisfaction, or waiver in accordance with Section 10.5, satisfaction of the following conditions precedent:conditions, unless waived in writing by Lender.
2.1 Lender receives the written notification for drawdown under the Loan sent by Borrower according to Section 1.2.
2.2 The Borrower’s Company and the Lender or the Lender’s designated person (ilegal person or natural person) Administrative Agent shall have received agree to conclude and sign a fully executed and delivered Funding Notice or Issuance Noticenew “Exclusive Business Cooperation Agreement” on June [___], as the case may be;2008.
(ii) after making the Credit Extensions requested on such Credit Date2.3 The Borrower, the Total Utilization Borrower’s Company and the Lender concluded and signed a “Supplementary Agreement to the Share Pledge Agreement” on June 23, 2008.
2.4 The Borrower, the Borrower’s Company and the Lender concluded and signed a “Supplementary Agreement to the Exclusive Option Agreement” on June 23, 2008.
2.5 The said “Supplementary Agreement to the Share Pledge Agreement”, “Supplementary Agreement to the Exclusive Option Agreement” and the “Exclusive Business Cooperation Agreement” shall come into effective upon being signed and stamped, and no events of Revolving Commitments default or other events can impair or affect the effectiveness of the said agreements.
2.6 The Lender and Beijing Tuohua Management and Consultation Co., Ltd. (“Tuohua”) concluded and signed a Loan Agreement on June 23, 2008; Tuohua, the Lender and the Borrower’s Company concluded and signed the “Share Pledge Agreement” and the “Exclusive Option Agreement” and Tuohua issued a “Power of Attorney”.
2.7 The said “Loan Agreement’, “Exclusive Option Agreement”, “Power of Attorney” and “Share Pledge Agreement” shall not exceed come into effective upon being signed and stamped, and no events of default or other events can impair or affect the Revolving Commitments then in effect;effectiveness of the said agreements.
(iii) as of such Credit Date, 2.8 All the representations and warranties contained herein by Borrower in Section 3.2 are true, complete, correct and not misleading.
2.9 Borrower has not violated the covenants in the other Credit Documents shall be true Section 4 of this Agreement, and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have which may affect Borrower’s performance of its obligations under this Agreement has occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not is expected to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesoccur.
Appears in 1 contract
Sources: Loan Agreement (Ku6 Media Co., LTD)
Conditions Precedent. 6.1 Conditions Precedent - WABC and ValliCorp. ----------------------------------------- The obligation respective obligations of each Lender the parties to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including effect the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Merger shall be subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, of the following conditions precedentat or prior to the Closing Date:
(a) This Agreement and the transactions contemplated hereby shall have been approved and adopted by the requisite affirmative vote of the holders of (i) Administrative Agent ValliCorp Common Stock entitled to vote thereon and (ii) WABC Common Stock entitled to vote thereon;
(b) The Registration Statement (including any post-effective amendment thereto) shall be effective under the Securities Act, and no proceeding shall be pending or to the knowledge of WABC threatened by the Commission to suspend the effectiveness of such Registration Statement, and WABC shall have received all state securities or "Blue Sky" permits or other authorizations, or confirmations as to the availability of an exemption from registration requirements as may be necessary;
(c) No event shall have occurred that shall preclude, in the opinion of KPMG Peat Marwick, the Merger from being accounted for as a pooling of interests, and the parties shall have received a fully executed letter from KPMG Peat Marwick to the effect that the Merger shall qualify for such pooling-of-interests method of accounting in accordance with generally accepted accounting principles and delivered Funding Notice all applicable rules, regulations and policies of the Commission;
(d) Neither WABC nor ValliCorp or Issuance NoticeValliWide shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction which enjoins or prohibits the consummation of the transactions contemplated by this Agreement and the Plan of Merger;
(e) The shares of WABC Common Stock that may be issued in the Merger shall have been approved for listing on Nasdaq, subject to official notice of issuance;
(f) WABC and ValliCorp shall have each received such certificates and other closing documents as counsel for WABC and ValliCorp shall reasonably request;
(g) Each party hereto shall have received, or the other party hereto shall have satisfied itself that such party will receive, all consents of other parties to and required by material mortgages, notes, leases, franchises, agreements, licenses and permits applicable to ValliCorp or WABC, as the case may be;
(ii) after making the Credit Extensions requested on , and no such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties consent or license or permit shall have been true and correct withdrawn or suspended, unless the failure to obtain such consents, individually or in all material respects the aggregate, would not have a Material Adverse Effect on and ValliCorp or WABC, as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank case may reasonably require in connection with the issuance of such Letter of Creditbe; and
(vih) All Government Approvals shall be in effect, and all conditions or requirements prescribed by law or by any Government Approval shall have been satisfied; provided, however, that no Government Approval shall be deemed to have been received if it imposes any condition or requirement or disapproves any aspect of any Application which, in the reasonable opinion of the Board of Directors of WABC or ValliCorp so materially and adversely affects the anticipated economic and business benefits to WABC or ValliCorp of the transactions contemplated by this Agreement as to render consummation of such transactions inadvisable (in which case WABC shall promptly notify ValliCorp). For purposes of a Revolving Loan used in connection with this Agreement, no condition, requirement or disapproval shall be deemed to so adversely affect the financing anticipated economic and business benefits to WABC or ValliCorp of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not transactions contemplated by this Agreement as to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)render consummation of such transactions inadvisable, if such condition does not materially differ from conditions regularly imposed by the governmental authority in orders approving transactions of the type contemplated by this Agreement or compliance with such condition, requirement or disapproval would not (A) require or prevent the aggregate amount taking of Permitted Acquisition Expenses exceeds $10,000,000 any action inconsistent with the manner in which WABC or ValliCorp has conducted its business previously or as contemplated by this Agreement, (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters have a Material Adverse Effect upon WABC or ValliCorp, or (together with any Permitted Acquisition agreed to and not yet consummatedC) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the preclude satisfaction of any of the foregoing ifconditions to consummation of the transactions contemplated by this Agreement. Notwithstanding any other provision of this subsection, the conditions set forth in this subsection shall not be deemed to be satisfied if any Governmental Approval or any order relating thereto shall contain any terms or conditions which shall be such as to prevent WABC from effecting achievement of the good faith judgment level of such Agent or Requisite Lender such request is warranted under the circumstancesoperating efficiency improvements as Previously Disclosed by WABC to ValliCorp.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Vallicorp Holdings Inc)
Conditions Precedent. The obligation obligations of the Lenders to make Advances and of the Issuing Lenders to issue Letters of Credit hereunder shall not become effective until the first date (the “Effective Date”) occurring on or prior December 18, 2015 on which the following conditions precedent have been satisfied:
(a) There shall have occurred no material adverse change in the business, assets, operations or condition, financial or otherwise, of PPG and its Subsidiaries taken as a whole since December 31, 2014.
(b) Except for the Disclosed Matters, there shall exist no action, suit, investigation, litigation or proceeding affecting PPG or any of its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any of the other Loan Documents or the consummation of the transactions contemplated hereby or thereby.
(c) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lenders and the Issuing Lenders shall have been given such access to the management, records, books of account, contracts and properties of PPG and its Subsidiaries as they shall have reasonably requested.
(d) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(e) PPG shall have notified the Administrative Agent in writing as to the proposed Effective Date.
(f) PPG shall have paid all accrued fees and expenses of the Administrative Agent, the Issuing Lenders, the Lenders and the Arrangers (including the accrued fees and expenses of counsel to the Administrative Agent) payable on or prior to the Effective Date to the extent and as previously agreed in writing.
(g) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received for the account of each Lender to make any Loanand Issuing Lender a certificate signed by a duly authorized officer of PPG, or Issuing Bank to issue any Letter of Credit, on any Credit dated the Effective Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedentstating that:
(i) The representations and warranties contained in Section 4.01 are correct on and as of the Effective Date,
(ii) No event has occurred and is continuing that constitutes a Default, and
(iii) PPG has terminated the commitments of the lenders and repaid or prepaid in full all amounts outstanding under the Existing Credit Agreement (other than in respect of any Existing Letter of Credit).
(h) The Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of CreditEffective Date the following, Administrative Agent shall have received all other information required by the applicable Issuance Noticeeach dated such day, in form and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information substance reasonably satisfactory to the requesting party confirming Administrative Agent and (except for the satisfaction of any of the foregoing if, Notes) in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.sufficient copies for each Lender:
Appears in 1 contract
Conditions Precedent. The obligation Conditions Precedent in favor of each Lender Haystar
7.1 Haystar’s obligations to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including carry out the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, transactions contemplated hereby are subject to the satisfaction, or waiver in accordance with Section 10.5, fulfillment of each of the following conditions precedentprecedent on or before the Closing:
(a) all documents or copies of documents required to be executed and delivered to Haystar hereunder will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by Dibz or the Dibz Shareholders at or prior to the Closing will have been complied with or performed;
(c) title to the Dibz Shares held by the Dibz Shareholders and to the Dibz Assets will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever, save and except as disclosed herein, and the Dibz Shares shall be duly transferred to Haystar;
(d) subject to Article 8 hereof, there will not have occurred
(i) Administrative Agent shall have received a fully executed any material adverse change in the financial position or condition of Dibz, its liabilities or the Dibz Assets or any damage, loss or other change in circumstances materially and delivered Funding Notice adversely affecting Dibz, the Dibz Business or Issuance Noticethe Dibz Assets or Dibz's right to carry on the Dibz Business, as other than changes in the case may be;ordinary course of business, none of which has been materially adverse, or
(ii) after making any damage, destruction, loss or other event, including changes to any laws or statutes applicable to Dibz or the Credit Extensions requested on such Credit DateDibz Business (whether or not covered by insurance) materially and adversely affecting Dibz, the Total Utilization of Revolving Commitments shall not exceed Dibz Business or the Revolving Commitments then in effectDibz Assets;
(iiie) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties transactions contemplated hereby shall have been true and correct in approved by all material respects on and as of such earlier dateother regulatory authorities having jurisdiction over the subject matter hereof, if any;
(ivf) as of such Credit Date, no event the transactions contemplated hereby shall have occurred been approved by the Board of Directors and be continuing or would result from the consummation shareholders of the applicable Credit Extension that would constitute an Event of Default or a DefaultDibz;
(vg) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25the Closing Date, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders Dibz and/or the Dibz Shareholders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any have acquired all of the foregoing if, ordinary shares held by Dibz Shareholders that are not participating in this Agreement so that Haystar shall acquire 100% of the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.presently issued and outstanding Dibz Shares; and
Appears in 1 contract
Conditions Precedent. The obligation Subject at all times to Section 1(b), each purchase of each Lender to make any Loan, Offered Receivables described in a Purchase Request accepted by the Purchaser in whole or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are in part is subject to the satisfaction, or waiver in accordance with Section 10.5, satisfaction of the following conditions precedentprior to the proposed Purchase Date, all to the satisfaction of the Purchaser, and the submission of each Purchase Request shall constitute a representation and warranty by the applicable Seller that each of the following conditions have been satisfied on or prior to the proposed Purchase Date:
(i) Administrative Agent the Purchaser shall have received (A) a fully executed Purchase Request with respect to the Offered Receivables at least two (2) Business Days prior to any such purchase, and delivered Funding Notice or Issuance Notice, as (B) such additional supporting documentation with respect to such Offered Receivables that the case Purchaser may behave reasonably requested;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the Seller’s representations and warranties contained herein and in made under the other Credit Transaction Documents shall be true and correct on such Purchase Date;
(iii) such Seller is in compliance with all material respects on and of its covenants under the Transaction Documents, including in its capacity as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier datea Servicer hereunder;
(iv) as of no Repurchase Event exists on such Credit Purchase Date, no event shall have occurred unless such Seller has repurchased and be continuing paid (or would result from is paying on such proposed Purchase Date) the consummation full amount of the applicable Credit Extension that would constitute an Event Repurchase Price for the affected Purchased Receivables pursuant to the terms of Default Section 5 or a Defaultsuch repurchase or other payment is being effectuated on such proposed Purchase Date by payment in cash or by setoff by the Purchaser against the Purchase Price for the Offered Receivables;
(v) on or before following the date sale and purchase of issuance of the Offered Receivables set forth in the related Purchase Request, (A) the Outstanding Purchase Price will not exceed the Program Limit and (B) the Outstanding Purchase Price with respect to the Purchased Receivables payable by any Letter of Credit, Administrative Agent Account Debtor will not exceed the Account Debtor Credit Limit for such Account Debtor;
(vi) no Insolvency Event shall have received all other information required by occurred with respect to any Account Debtor obligated on the applicable Issuance NoticeOffered Receivables described in such Purchase Request, and such other documents no Insolvency Event with respect to any Seller or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of CreditServicer shall have occurred; and
(vivii) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating respect to the satisfaction of Administrative Agent that, as of such Credit Initial Purchase Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements conditions precedent set forth in Annex B hereto shall have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending satisfied on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesInitial Purchase Date.
Appears in 1 contract
Sources: Master Receivables Purchase Agreement (Harmonic Inc)
Conditions Precedent. BB&T and First Citizens The obligation respective obligations of each Lender BB&T and First Citizens to make any Loan, effect the transactions contemplated by this Agreement shall be subject to satisfaction or Issuing Bank waiver of the following conditions at or prior to issue any Letter of Credit, on any Credit Date, including the Effective Date Time:
(a) All corporate action necessary to authorize the execution, delivery and performance of this Agreement and the Plan of Merger, and consummation of the transactions contemplated hereby and thereby, shall have been duly and validly taken, including, without limitation, the approval of the shareholders of First Citizens of the Agreement and the Plan of Merger;
(b) The Registration Statement (including any post-effective amendments thereto) shall be effective under the Securities Act, no proceedings shall be pending or to the knowledge of BB&T threatened by the Commission to suspend the effectiveness of such Registration Statement and the BB&T Common Stock to be issued as contemplated in the Plan of Merger shall have either been registered or be subject to exemption from registration under applicable state securities laws;
(c) The parties shall have received all regulatory approvals required in connection with the transactions contemplated by this Agreement and the Plan of Merger, all notice periods and waiting periods with respect to such approvals shall have passed and all such approvals shall be in effect;
(d) None of BB&T, any of the BB&T Subsidiaries, First Citizens or any of the First Citizens Subsidiaries shall be subject to any order, decree or injunction of a court or agency of competent jurisdiction which enjoins or prohibits consummation of the transactions contemplated by this Agreement;
(e) First Citizens and BB&T shall have received an opinion of BB&T's legal counsel, in form and substance satisfactory to First Citizens and BB&T, substantially to the effect that the Merger will constitute one or more reorganizations under Section 368 of the Code and that the shareholders of First Citizens will not recognize any gain or loss to the extent that such shareholders exchange shares of First Citizens Common Stock for shares of BB&T Common Stock; and
(f) BB&T shall have received letters, dated as of the date of filing of the Registration Statement with the Commission and as of the Effective Time, addressed to BB&T, in form and substance reasonably satisfactory to BB&T, from ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating LLP to the satisfaction of Administrative Agent that, as of such Credit Date, effect that the Leverage Ratio as of the last day of the most recent Fiscal Quarter Merger will qualify for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancespooling-of-interests accounting treatment.
Appears in 1 contract
Conditions Precedent. The obligation Assignor shall use diligent efforts to obtain the -------------------- written consent of each Lender both Landlord and Sublandlord to make any Loanthis Assignment, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date which consents shall acknowledge and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
confirm that (i) Administrative Agent shall have received a fully executed Landlord and delivered Funding Notice or Issuance NoticeSublandlord, as respectively, accept the case may be;
waiver of subrogation provisions set forth in Section 6, (ii) after making the Credit Extensions requested on such Credit Dateneither Sublandlord nor Master Landlord, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Dateapplicable, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance any knowledge of any Letter of Creditbreach or default by Assignor, Administrative Agent shall have received all other information required by Sublandlord or Master Landlord under the applicable Issuance NoticeSublease or Master Lease and that the Sublease and Master Lease are in full force and effect, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior the Base Monthly Rent amounts payable pursuant to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any Section 9 of the Sublease shall remain unchanged after the Commencement Date. If Assignor does not obtain both Landlord's and Sublandlord's written consent to this Assignment with all the foregoing ifacknowledgments and confirmations within twenty (20) days after the execution of this Assignment by Assignee, then at any time thereafter until such consents are obtained, Assignee may terminate this Assignment by written notice to Assignor, whereupon any monies previously paid by Assignee to Assignor (including, without limitation, the Assignment Fee set forth below in Section 1.1) shall promptly be reimbursed to Assignee, together with interest thereon from the good faith judgment date of such Agent or Requisite Lender such request is warranted the termination until paid at the Interest Rate; provided, however, that if Assignor has used diligent efforts to attempt to obtain Sublandlord's and Master Landlord's consent and has otherwise satisfied its obligations under this Assignment, then Assignor may subtract from the circumstancesforegoing reimbursement to Assignee and retain the initial Twenty-Five Thousand Dollar ($25,000) deposit it received from Assignee.
Appears in 1 contract
Conditions Precedent. The obligation requirements set forth in Sections 14.1 & 15 constitute conditions precedent to the DB Contractor’s entitlement to request and receive a Change Order in all circumstances. The DB Contractor agrees that the filing of each Lender a PCO Notice and subsequent filing of a Request for Change Order (RCO) with the District pursuant to this Section are necessary in order to begin the administrative process for Contractor-requested Change Orders. The DB Contractor understands that it shall be forever barred from recovering against the District under Section 15 if it fails to give notice of any act, or failure to act, by the District or any of its representatives or the happening of any event, thing, or occurrence pursuant to a proper PCO Notice and thereafter complies with the remaining requirements of this Section. The DB Contractor shall deliver to the District a PCO Notice stating that an event or situation has occurred and shall state whether it is entitled to additional time or money. The first notice shall be labeled “PCO No. 1,” and subsequent notices shall be numbered sequentially. Each PCO Notice shall be delivered as promptly as possible after the occurrence of such event or situation. If any PCO Notice is delivered later than 10 Days after the DB Contractor first discovered, or should have discovered in the exercise of reasonable prudence, the occurrence which is described therein, the DB Contractor shall be deemed to have waived the right to collect any and all costs incurred prior to the date of delivery of the PCO Notice and shall be deemed to have waived the right to see an extension of any Completion Date with respect to any delay in the Critical Path that accrued prior to the date of delivery of the written notice. Furthermore, if any PCO Notice concerns any condition or material described in Section 7, the DB Contractor shall be deemed to have waived the right to collect any and all costs incurred in connection therewith to the extent that the District is not afforded the opportunity to inspect such material or condition before it is disturbed. The DB Contractor’s failure to provide a PCO Notice within 10 Days after the DB Contractor first discovered, or should have discovered in the exercise of reasonable prudence, the occurrence of a given event or situation shall preclude the DB Contractor from any relief. A PCO Notice shall be deemed delivered only if it fully conforms to the requirements of Section 15. The PCO Notice shall (i) state in detail the facts underlying the potential Change Order, the reasons why the DB Contractor believes additional compensation or time will or may be due, and the date of occurrence; (ii) state in detail the basis that the work is not required by the Contract, if applicable; (iii) identify particular elements of Contract performance for which additional compensation may be sought under Section 15; (vi) identify any potential Critical Path impacts affecting a Completion Date; and (v) provide an estimate of the time within which a response to the notice is required to minimize cost, delay, or disruption of performance. Any adjustments made to the Contract shall not include increased costs or time extensions for delay resulting from the DB Contractor’s failure to provide requested additional information under this Section. The DB Contractor shall deliver all RCOs under Section 15 to the District within 30 Days after delivery of the PCO Notice. The District may require design and construction costs to be covered by separate Change Order requests. If the DB Contractor requests a time extension, then the District, in its sole discretion, may require the DB Contractor to provide two (2) alternative Change Order requests, one of which shall provide for a time extension and any additional costs permitted hereunder, and the other of which shall show all Acceleration Costs associated with meeting the original Completion Dates, as well as any additional costs permitted hereunder. The DB Contractor acknowledges and agrees that, due to the limited availability of funds for the Project, timely delivery of notification of such events, situations, RCOs, and updates thereto are of vital importance to the District. The District is relying on the DB Contractor to evaluate promptly upon the occurrence of any event or situation, whether the event or situation will affect schedule or costs and, if so, whether the DB Contractor believes a time extension and/or price increase is required hereunder. If an event or situation occurs that may affect the Contract Price or a Completion Date, the District will evaluate the situation and determine whether it wishes to make any Loanchanges to the definition of the Project to bring it within the District’s funding and time restraints. Before the DB Contractor submits any PCO Notice or a RCO to the District that is based in whole or in part on a request by a Subcontractor to the DB Contractor for a price increase or time extension under its Subcontract, the DB Contractor shall have reviewed all Claims by the Subcontractor that constitute the basis for the RCO and determined in good faith that each such Claim is justified hereunder and that the DB Contractor is justified in requesting an increase in the Contract Price and/or change in Completion Dates in the amounts specified in the RCO. Each RCO involving Subcontractor Work shall include a sworn certification in a form acceptable to the District and signed by the DB Contractor’s Project Manager stating that the DB Contractor has investigated the basis for the Subcontractor’s Claims and has concluded that all such Claims are justified as to entitlement and the amount of money and/or time requested and has no reason to believe, and does not believe, that the factual basis for the Subcontractor’s Claim is falsely represented. Any RCO involving Subcontractor Work shall be considered incomplete if it is not accompanied by such certification. The District shall have 10 Days to investigate and respond to the DB Contractor’s PCO Notice or Issuing Bank RCO. If the District refuses to issue any Letter a Change Order based on the DB Contractor’s request, the DB Contractor shall nevertheless perform all work as specified in an appropriate Directive Letter, with the right to submit the issue of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject entitlement to the satisfaction, or waiver a Change Order to Dispute resolution in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters21. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.The
Appears in 1 contract
Sources: Design Build Agreement
Conditions Precedent. The obligation effectiveness of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are this Amendment is subject to the satisfaction, or waiver in accordance with Section 10.5, satisfaction of the following conditions precedent:
(ia) Administrative Agent the Seller Parties, the Administrator, and the Purchasers shall have executed and delivered this Amendment on or before November 26, 2008;
(b) the Administrator shall have received a copy of a fully executed amendment to the CoBank Limited Duration Waiver extending the waiver under the CoBank Limited Duration Waiver of any default under the CoBank Credit Agreement that is analogous to the Subject Default for a period ending no earlier that the Scheduled Waiver Expiration Date as extended by this Amendment, which amendment shall not contain or add to the CoBank Limited Duration Waiver any terms or provisions that are not contained in the Waiver Agreement as amended by this Amendment materially adverse to the Administrator and delivered Funding Notice the Purchasers or Issuance Noticethat are, in any material respect, more favorable to the lenders under the CoBank Credit Agreement than the terms of the Waiver Agreement as amended by this Amendment are favorable to the case may beAdministrator and the Purchasers, and which otherwise shall be in form and substance reasonably satisfactory to the Administrator, and such amendment to the CoBank Limited Duration Waiver shall be effective;
(iic) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent Administrator shall have received all other information required a copy of a fully executed amendment to the Credit Agreement Limited Duration Waiver extending the waiver under the Credit Agreement Limited Duration Waiver of any default under the Credit Agreement that is analogous to the Subject Default for a period ending no earlier that the Scheduled Waiver Expiration Date as extended by this Amendment, which amendment shall not contain or add to the applicable Issuance NoticeCredit Agreement Limited Duration Waiver any terms or provisions that are not contained in the Waiver Agreement as amended by this Amendment materially adverse to the Administrator and the Purchasers or that are, in any material respect, more favorable to the lenders under the Credit Agreement than the terms of the Waiver Agreement as amended by this Amendment are favorable to the Administrator and the Purchasers, and which otherwise shall be in form and substance reasonably satisfactory to the Administrator, and such other documents or information as Issuing Bank may reasonably require in connection with amendment to the issuance of such Letter of CreditCredit Agreement Limited Duration Waiver shall be effective; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (Ad) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as payment of the last day of the most recent Fiscal Quarter for which financial statements have been delivered current legal fees and expenses referred to the Lenders pursuant to in Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances12 above.
Appears in 1 contract
Sources: Limited Duration Waiver Agreement (Pilgrims Pride Corp)
Conditions Precedent. The obligation obligations of each Lender the Hong Kong Underwriters under this Agreement are conditional on the following conditions precedent being satisfied or, where applicable, waived (to make any Loanthe extent permissible under applicable Laws):
2.1.1 the Joint Sponsors and the Overall Coordinators (for themselves and on behalf of the Underwriters) receiving from the Company all Conditions Precedent Documents as set out in Part A of Schedule 3 and Part B of Schedule 3, in form and substance satisfactory to the Joint Sponsors and the Overall Coordinators, not later than 8:00 p.m. on the Business Day immediately before the Hong Kong Prospectus Date and 8:00 p.m. on the Business Day immediately before the Listing Date or Issuing Bank to such later time and/or date as the Joint Sponsors and the Overall Coordinators (for themselves and on behalf of the Underwriters) may agree, respectively;
2.1.2 the issue any Letter by the Stock Exchange of Credit, a certificate of authorization of registration in respect of the Hong Kong Prospectus on any Credit Date, including the Effective Business Day immediately before the Hong Kong Prospectus Date and the ▇▇▇▇▇▇ Acquisition Closing Dateregistration by the Registrar of Companies in Hong Kong of one copy of the Hong Kong Prospectus, are duly certified by two Directors (or by their attorneys duly authorized in writing) as having been approved by resolutions of the Board and having attached thereto all necessary consents and documents required by section 342C (subject to the satisfaction, or waiver in accordance with Section 10.5, any certificate of exemption granted pursuant to section 342A) of the following conditions precedent:
Companies (iWinding up and Miscellaneous Provisions) Administrative Agent shall have received a fully executed and delivered Funding Notice Ordinance not later than 6:00 p.m. or Issuance Notice, such later time as agreed by the Stock Exchange or the Registrar of Companies in Hong Kong (as the case may be) on the Business Day before the Hong Kong Prospectus Date;
2.1.3 Admission having occurred and become effective (ii) after making either unconditionally or subject only to allotment and issue of the Credit Extensions requested on relevant Offer Shares, despatch or availability for collection of share certificates in respect of the Offer Shares and/or such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) other conditions as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall may be true and correct in all material respects on and as of that Credit Date acceptable to the same extent as though made Joint Sponsors and the Overall Coordinators (for themselves and on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation behalf of the applicable Credit Extension that would constitute an Event of Default or a Default;
(vHong Kong Underwriters)) on or before the Listing Date (or such later date as the Joint Sponsors and the Overall Coordinators (for themselves and on behalf of issuance the Hong Kong Underwriters) may agree in writing) and Admission not subsequently having been withdrawn, revoked or withheld prior to the commencement of any Letter trading of Creditthe Class A Ordinary Shares on the Main Board;
2.1.4 admission into CCASS in respect of the Class A Ordinary Shares having occurred and become effective (either unconditionally or subject only to allotment and issue of the relevant Offer Shares, Administrative Agent shall have received all despatch or availability for collection of share certificates in respect of the Offer Shares and/or such other information required conditions as may be acceptable to the Joint Sponsors and the Overall Coordinators (for themselves and on behalf of the Hong Kong Underwriters)) on or before the Listing Date (or such later date as the Joint Sponsors and the Overall Coordinators (for themselves and on behalf of the Hong Kong Underwriters) may agree in writing);
2.1.5 the Hong Kong Offer Price and the International Offer Price having been fixed and the Price Determination Agreement having been duly executed by the applicable Issuance NoticeCompany and the Overall Coordinators (for themselves and on behalf of the Underwriters), on the Price Determination Date (or such later date as may be agreed between the Company and the Joint Sponsors and the Overall Coordinators (for themselves and on behalf of the Underwriters)) in accordance with Clause 2.6 and such agreement not subsequently having been terminated in accordance with its terms or otherwise, prior to 8:00 a.m. on the Listing Date;
2.1.6 the execution and delivery of the International Underwriting Agreement and the Stock Borrowing Agreement by the parties thereto on the Price Determination Date and such agreement(s) not subsequently having been terminated, the obligations of the International Underwriters under the International Underwriting Agreement having become unconditional in accordance with its terms, save for the condition therein relating to the obligations of the Hong Kong Underwriters under this Agreement (and any condition for this Agreement to become unconditional), and the International Underwriting Agreement not having been terminated in accordance with its terms or otherwise, prior to 8:00 a.m. on the Listing Date;
2.1.7 the CSRC having accepted the CSRC Filings and published the filing results in respect of the CSRC Filings on its website, and such other documents notice of acceptance and/or filing results published not having otherwise been rejected, withdrawn, revoked or information invalidated prior to 8:00 a.m. on the Listing Date;
2.1.8 the Warranties being true, accurate, not misleading and not being breached on and as Issuing Bank may reasonably require of the date of this Agreement and the dates and times on which they are deemed to be repeated under this Agreement (as though they had been given and made on such dates and times by reference to the facts and circumstances then subsisting);
2.1.9 each of the Warrantors having complied with this Agreement and satisfied all the obligations and conditions on its/his part under this Agreement to be performed or satisfied (or otherwise waived in accordance with the terms stated herein) on or prior to the respective times and dates by which such obligations must be performed or conditions must be met;
2.1.10 all of the waivers or exemptions as stated in the Hong Kong Prospectus to be granted by the Stock Exchange or the SFC having been granted and are not otherwise revoked, withdrawn, amended or invalidated; and
2.1.11 all of the Approvals and Filings in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses application for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as listing of the last day of Class A Ordinary Shares and the most recent Fiscal Quarter for which financial statements have Global Offering granted by the relevant Authorities having been delivered to the Lenders pursuant to Section 5.1(b)obtained, determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extensionvalid and are not otherwise revoked, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on withdrawn, amended or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesinvalidated.
Appears in 1 contract
Conditions Precedent. The obligation obligations of the several Underwriters to purchase and pay for the Shares shall be subject, in the Representativeso sole discretion, to the accuracy of the representations and warranties of the Company and the Selling Stockholders contained herein as of the date hereof and as of each Lender Closing Date, as if made on and as of each Closing Date, to make the accuracy of the statements of the Companyos officers and the Selling Stockholders made pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of their respective covenants and agreements hereunder and to the following additional conditions:
(i) If the Original Registration Statement or any Loanamendment thereto filed prior to the First Closing Date has not been declared effective as of the time of execution hereof, the Original Registration Statement or such amendment shall have been declared effective not later than 6:00 P.M. New York City time on the date of determination of the public offering price, if such determination occurred at or prior to 4:30 P.M. New York City time on such date, or Issuing Bank 12:00 Noon New York City time on the business day following the day on which the public offering price was determined, if such determination occurred after 4:30 P.M. New York City time on such date, and (ii) if the Company has elected to issue rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have been declared effective not later than the time confirmations are sent or given as specified by Rule 462(b)(2), or such later time and date as shall have been consented to by the Representatives; if required, the Prospectus or any Letter Term Sheet that constitutes a part thereof and any amendment or supplement thereto shall have been filed with the Commission in the manner and within the time period required by Rules 434 and 424(b) under the Securities Act; no stop order suspending the effectiveness of Creditthe Registration Statement or any amendment thereto shall have been issued, on any Credit Dateand no proceedings for that purpose shall have been instituted or threatened or, including to the Effective Date knowledge of the Company or the Representatives, shall be contemplated by the Commission; and the Company shall have complied with any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received a legal opinion from Gund▇▇▇▇▇ ▇▇▇t▇▇▇ ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇l▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇▇▇ Acquisition Financing Requirements)& ▇ach▇▇▇▇▇, if ▇▇P, counsel for the Company, dated the Closing Date, to the effect that:
(Ai) the aggregate amount Registration Statement is effective under the Securities Act; any required filing of Permitted Acquisition Expenses exceeds $10,000,000 the Prospectus, or any Term Sheet that constitutes a part thereof, pursuant to Rules 434 and 424(b) has been made in the manner and within the time period required by Rules 434 and 424(b); and no stop order suspending the effectiveness of the Registration Statement or any amendment thereto has been issued and, to the best knowledge of such counsel, no proceedings for that purpose are pending or threatened by the Commission;
(Bii) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for Original Registration Statement and each amendment thereto, any Rule 462(b) Registration Statement and the previous four Fiscal Quarters Prospectus (together with any Permitted Acquisition agreed to in each case, other than the financial statements and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent thatother financial information contained therein, as of to which such Credit Date, counsel need express no opinion) comply as to form in all material respects with the Leverage Ratio as applicable requirements of the last day Securities Act and the rules and regulations of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and Commission thereunder;
(iii) 4.75:1.00 such counsel has no reason to believe that (in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitledeach case, but not obligated toother than the financial statements and other financial information contained therein, request and receive, prior as to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of which such Agent or Requisite Lender such request is warranted under the circumstances.counsel need express no opinion)
Appears in 1 contract
Conditions Precedent. The obligation obligations of each Lender Buyer to make purchase the Property pursuant to this Agreement shall, at the option of Buyer, be subject to the following conditions precedent:
9.1.1. Seller shall have delivered the certificate reaffirming its representations and warranties as set forth in Section 7.1.
9.1.2. Tenant shall not be in default under the Lease nor shall Tenant have given notice that it is discontinuing operations at the Real Property nor shall Tenant have filed bankruptcy or sought any Loansimilar debtor protective measure or be the subject of an involuntary bankruptcy.
9.1.3. Buyer shall have received, no later than the Close of Escrow, an estoppel certificate on a form provided by (or Issuing Bank to issue otherwise approved by) Buyer or in the form required under the Lease (“Conforming Estoppel”) and a subordination, nondisturbance and attornment agreement on a form provided by (or otherwise approved by) Buyer or in the form required under the Lease (“Conforming SNDA”) from the Tenant. Buyer shall notify Seller within five (5) business days following receipt of a copy of any Letter executed estoppel certificate and/or subordination, nondisturbance and attornment agreement (but not later than the Close of Credit, on any Credit Date, including the Effective Date Escrow) of Buyer’s approval or disapproval and the basis of such disapproval, if disapproved; provided that, if Buyer does not notify Seller of its disapproval within such period, such estoppel certificate will be deemed a Conforming Estoppel and/or such subordination, nondisturbance and attornment agreement will be deemed a Conforming SNDA. If Buyer does not receive a Conforming Estoppel and/or a Conforming SNDA prior to the Close of Escrow, Buyer shall have the right to terminate this Agreement and to obtain a refund of the Deposit without any further action required by any party, and neither party shall have any further obligation to the other, except as otherwise expressly provided herein.
9.1.4. Buyer shall have until expiration of the Due Diligence Period to enter into a purchase agreement giving Buyer the right to purchase that certain parcel more commonly known as “Triumph Hospital Southwest” (located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Acquisition Closing Date▇▇▇▇., are subject to the satisfaction▇▇▇▇▇ ▇▇▇▇, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in ). If Buyer, or an aggregate principal amount affiliate of Buyer, has not entered into such agreement, Buyer may terminate this Agreement by notice to exceed $10,000,000 used Seller prior to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)expiration of the Due Diligence Period and obtain a refund of the Deposit without any further action required by any party, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings neither party shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating any further obligation to the satisfaction of Administrative Agent thatother, except as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesotherwise expressly provided herein.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NNN Healthcare/Office REIT, Inc.)
Conditions Precedent. Section 32.1 The obligation parties acknowledge that prior to obtaining a building permit for the construction of each Lender the Building and all required site work, Landlord must obtain the permission of one or more governmental authorities having jurisdiction over the Demised Premises (the "Governmental Approvals"). Landlord agrees to make any Loanapply for the Governmental Approvals as soon as practicable following the execution of this Lease. All costs thereof shall be paid by Landlord and shall be a part of the total project cost.
Section 32.2 Tenant agrees to cause its architect to furnish to Landlord, at Tenant's expense, such plans and drawings as Landlord shall reasonably require in order to obtain all of the Governmental Approvals.
Section 32.3 In the event that Landlord, through no fault or Issuing Bank neglect on its part, is unable to issue any Letter of Creditobtain all required Governmental Approvals and all appeal periods in connection therewith have expired, on any Credit Dateor before six (6) months after the date hereof, including either party may terminate and cancel this Lease upon written notice to the Effective Date other.
Section 32.4 This Lease is subject to and contingent upon the Tenant's sale of its present headquarters building located at 660 Enfield Street, Enfield, Connec▇▇▇▇▇ (▇▇▇ "▇▇▇▇ ▇▇▇▇▇▇▇▇") ▇▇ ▇▇ ▇▇▇▇▇▇ Acquisition Closing Date▇he Commencement Date for a sum not less than $525,000.00. In the event that, are subject to within 120 days after the satisfactiondate of this Lease, or waiver in accordance Tenant provides Landlord with Section 10.5written notice of its request that Landlord purchase the Bank Building, of Landlord shall execute the following conditions precedent:
(i) Administrative Agent shall have received a fully executed Purchase and delivered Funding Notice or Issuance NoticeSale Agreement attached hereto as Schedule E, as and consummate the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) purchase on or before the date Commencement Date, in which event this condition shall be deemed fully satisfied and of issuance no further force or effect. At the time of any Letter said closing Tenant shall execute an environmental indemnification agreement in favor of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Landlord with respect to the Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) Building in the case of a Revolving Loan form used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses by Tenant for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesits commercial loan transactions.
Appears in 1 contract
Conditions Precedent. The obligation Conditions Precedent in Favor of each Lender DecisionPoint
7.1 DecisionPoint’s obligations to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including carry out the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, transactions contemplated hereby are subject to the satisfaction, fulfillment (or waiver in accordance with Section 10.5, by DecisionPoint) of each of the following conditions precedentprecedent on or before the Closing:
(a) all documents or copies of documents, securities issuances and wire transfers required to be executed and delivered to DecisionPoint as set forth in Article 9 hereof will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by DecisionPoint at or prior to the Closing will have been complied with or performed;
(c) except as provided in Schedule 5.1(e) annexed hereto, title to the DecisionPoint Systems Shares held by the DecisionPoint Systems Shareholders will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever not created by or through DecisionPoint and/or the Acquirer;
(d) the Certificates of Merger shall be executed by DecisionPoint Systems in form acceptable for filing with Secretary of State of California and Delaware;
(e) reserved;
(f) subject to Article 8 hereof, there will not have occurred:
(i) Administrative Agent shall have received a fully executed any material adverse change in the financial position or condition of DecisionPoint Systems, its liabilities or the DecisionPoint Systems Assets or any damage, loss or other change in circumstances materially and delivered Funding Notice adversely affecting the DecisionPoint Systems Business or Issuance Noticethe DecisionPoint Systems Assets or DecisionPoint Systems’ right to carry on the DecisionPoint Systems Business, as other than changes in the case may be;ordinary course of business, none of which has been materially adverse, or
(ii) after making any damage, destruction, loss or other event, including changes to any laws or statutes applicable to DecisionPoint or the Credit Extensions requested on such Credit DateDecisionPoint Systems Business (whether or not covered by insurance) materially and adversely affecting DecisionPoint Systems, the Total Utilization of Revolving Commitments shall not exceed DecisionPoint Systems Business or the Revolving Commitments then in effectDecisionPoint Systems Assets;
(iiig) as of such Credit Datethe transactions contemplated hereby shall have been approved by all other regulatory authorities having jurisdiction over the subject matter hereof, the if any; and
(h) all representations and warranties of DecisionPoint Systems contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesClosing Date.
Appears in 1 contract
Conditions Precedent. The obligation Dealer Manager shall, by notice to the Republic (and in the case of each Lender paragraph (m) below, only after consultation with the Republic), be entitled to make withdraw as Dealer Manager in connection with the U.S. Offer at any Loantime if any of the conditions set forth in this Section 9 is not met, has not been satisfied or waived by the Dealer Manager and cannot be satisfied on or before the Expiration Date, or Issuing Bank to issue any Letter of Credit, on any Credit the Settlement Date, including as applicable, and the Effective obligations of the Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties and other statements of the Republic contained herein are now, and at all times during the U.S. Offer and until the Settlement Date, will be, true and correct in all material respects.
(b) The Republic at all times during the U.S. Offer shall have performed all of its respective obligations hereunder theretofore required to have been performed.
(c) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall be in effect on the Commencement Date, the Announcement Date, the Expiration Date and the Settlement Date and no proceedings for that purpose shall be pending before, or threatened by, the Commission on the Commencement Date, the Announcement Date, the Expiration Date, and the Settlement Date and the Dealer Manager shall have received, on each of the Commencement Date and the Settlement Date, certificates dated, respectively, the Commencement Date and the Settlement Date and signed by a duly authorized officer of the Republic to the effect that no such stop order is in effect and that no proceedings for such purpose are pending before or, to the knowledge of the Republic, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(d) On each of the Commencement Date and the Settlement Date, Shearman & Sterling LLP, your United States counsel, shall have furnished to you, as Dealer Manager, such written opinion or opinions, dated the respective date of delivery thereof, with respect to the validity of the Agreements, the Registration Statement, the Disclosure Package and the Prospectus and such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering their opinions, Shearman & Sterling LLP may rely as to all matters of Uruguayan law upon the opinions referred to in paragraphs (e) and (f) of this Section 9.
(e) On each of the Commencement Date and the Settlement Date, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, your Uruguayan counsel, shall have furnished to you, as Dealer Manager, such written opinion or opinions, dated the respective date of delivery thereof, with respect to the validity of the Agreements, the Registration Statement and the Prospectus and such other related matters as you may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering such opinion, such counsel may rely as to all matters of United States Federal and New York law upon the opinion of Shearman & Sterling LLP referred to in paragraph (d) of this Section 9.
(f) On each of the Commencement Date and the Settlement Date, Counsel to the Republic shall have furnished to you his written opinion, dated the respective date of delivery thereof in substantially the form of Annex I attached hereto. In rendering such opinion, such counsel may state that his opinion is limited to matters of Uruguayan law and may rely as to all matters of United States federal and New York law upon the opinion of ▇▇▇▇▇▇ Acquisition Closing ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP referred to in paragraph (g) of this Section 9. 12
(g) On each of the Commencement Date and the Settlement Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP United States counsel for the Republic and Banco Central, shall have furnished to you their written opinions, dated the respective date of delivery thereof in substantially the form of Annex II attached hereto. In rendering such opinions, such counsel may state that their opinions are subject limited to the satisfactionfederal laws of the United States and the laws of the State of New York and may rely as to all matters of Uruguayan law upon the opinions of Counsel to the Republic, referred to in paragraph (f) of this Section 9.
(h) On or waiver in accordance prior to the Settlement Date, there having been delivered to you as Dealer Manager (i) certified copies of the Decrees, together with Section 10.5a certified English translation thereof, and (ii) certified copies, together with certified English translations thereof, of all approvals, authorizations, consents and orders required for the following conditions precedent:issuance and exchange of the Registered 2036 Bonds and the execution of this Agreement and the Decrees, and all such approvals, authorizations, consents and orders having been obtained, shall be in full force and effect.
(i) Administrative Agent shall have received a fully executed On each of the Commencement Date and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Settlement Date, there will have been delivered to you as Dealer Manager certificates of duly authorized officials of the Total Utilization of Revolving Commitments shall not exceed Republic, dated the Revolving Commitments then in effect;
(iii) as of such Credit Commencement Date and the Settlement Date, to the following effect (x) the representations and warranties contained herein and of the Republic in the other Credit Documents shall be this Agreement are true and correct in all material respects on and as of that Credit Date to with the same extent effect as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case had been made at and as of the respective date of such certificate (other than such representations and warranties which are made as of a specified date), (y) the Republic has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the respective date of such certificate and (z) no proceeding has been initiated, or to the best of his or her knowledge, threatened to restrain or enjoin the U.S. Offer or the issuance or delivery of the Registered 2036 Bonds by the Republic pursuant to the U.S. Offer or in any manner to question the laws, proceedings, directives, resolutions, approvals, consents or orders under which the U.S. Offer will be effected or pursuant to which the Registered 2036 Bonds will be issued or to question the validity of the U.S. Offer or the Registered 2036 Bonds and none of said laws, proceedings, directives, resolutions, approvals, consents or orders has been repealed, revoked or rescinded in whole or in part.
(j) On or prior to the Settlement Date, there shall have been true delivered to you as Dealer Manager, in form and correct in all material respects on and as substance satisfactory to you, certificates of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation duly authorized officials of the applicable Credit Extension that would constitute an Event Republic as to the authority, incumbency and specimen signatures of Default the persons who have executed or a Default;
(v) on or before will execute this Agreement, the date of issuance of any Letter of Credit, Administrative Agent shall have received all Registered 2036 Bonds and the other information required instruments and documents to be executed and delivered hereunder and thereunder by the applicable Issuance NoticeRepublic as the case may be, and such other documents documents, opinions and certificates as you or information as Issuing Bank your counsel may reasonably require in connection with the issuance of such Letter of Credit; andrequire.
(vik) The Republic shall have furnished to you on the Settlement Date a certificate in English, dated the case date of delivery, to the effect that as of its effective date, the Registration Statement and any further amendment or supplement thereto, do not, contain an untrue statement of a Revolving Loan used in connection with material fact or omit a material fact to make the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount statements therein not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent misleading; that, as of such Credit the Expiration Date, the Leverage Ratio as Disclosure Package and any further amendment or supplement thereto made by the Republic do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the last day circumstances under which they were made, not misleading, the Prospectus and any further amendment or supplement thereto made by the Republic do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the most recent Fiscal Quarter for circumstances under which financial statements have been delivered they were made, not misleading; and that all statistical information in the Registration Statement and any further amendment or supplement thereto is presented on a basis consistent with public official documents of the Republic; provided, however, that the foregoing certification shall not apply to the Lenders pursuant to Section 5.1(b)statements in or omissions from the Registration Statement, determined on the Disclosure Package taken as a pro forma basis whole with the Prospectus or any amendment or supplement thereto made in accordance reliance upon and in conformity with Section 6.8(d) after giving effect information furnished to the proposed Credit ExtensionRepublic in writing by you expressly for use in the Registration Statement, shall not exceed 5.00:1.00 in respect the Disclosure Package or the Prospectus or any amendment or supplement thereto.
(l) Subsequent to the execution and delivery of Fiscal Quarters ending this Agreement and on or prior to December 25the Commencement Date or the Settlement Date there shall not have occurred any of the following: (i) in the opinion of the Dealer Manager, 2004a change in Uruguayan, United States or international financial, political or economic conditions as would in the Dealer Manager’s reasonable judgment be likely to prejudice materially the success of the U.S. Offer; and (ii) a suspension or material limitation of trading in (a) securities generally on the New York Stock Exchange or the London Stock Exchange or (b) the debt securities of the Republic in the United States; (iii) 4.75:1.00 a major disruption in respect the settlement or clearance of subsequent Fiscal Quarters. Any Agent debt securities services in the United States and such event shall continue until at least the business day preceding the Settlement Date; or Requisite Lenders (iv) a banking moratorium declared by either Federal or New York state or Uruguay authorities and any such event shall be entitled, but not obligated to, request and receive, prior make it impractical to proceed with the U.S. Offer.
(m) The Republic shall have furnished to the making Dealer Manager on the Settlement Date such further information, certificates and documents and agreements as the Dealer Manager may reasonably request.
(n) On the Settlement Date, the Republic shall tender the Registered 2036 Bonds for delivery.
(o) The Republic shall have performed all of any Credit Extensionits respective obligations under the Offshore Offer, additional information reasonably satisfactory to the requesting party confirming Local Offer and the satisfaction of Offshore Dealer Manager Agreement, and the Offshore Dealer Manager Agreement shall not have been terminated in accordance with its terms. The Dealer Manager may waive at their sole discretion and upon terms as they deem appropriate, any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesconditions set forth above.
Appears in 1 contract
Conditions Precedent. The obligation Conditions Precedent in favor of each Lender TriCord
7.1 TriCord’s obligations to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including carry out the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, transactions contemplated hereby are subject to the satisfaction, fulfillment (or waiver in accordance with Section 10.5, by TriCord) of each of the following conditions precedentprecedent on or before the Closing:
(a) all documents or copies of documents, securities issuances and wire transfers required to be executed and delivered to TriCord as set forth in Article 9 hereof will have been so executed and delivered;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or performed by ARIA at or prior to the Closing will have been complied with or performed;
(c) title to the ARIA Shares held by the ARIA Shareholders will be free and clear of all mortgages, liens, charges, pledges, security interests, encumbrances or other claims whatsoever not created by or through TriCord and/or the Acquirer;
(d) the Certificate of Merger shall be executed by ARIA in form acceptable for filing with the Nevada Secretary of State;
(e) reserved;
(f) subject to Article 8 hereof, there will not have occurred:
(i) Administrative Agent shall have received a fully executed any material adverse change in the financial position or condition of ARIA, its liabilities or the ARIA Assets or any damage, loss or other change in circumstances materially and delivered Funding Notice adversely affecting the ARIA Business or Issuance Noticethe ARIA Assets or ARIA’s right to carry on the ARIA Business, as other than changes in the case may be;ordinary course of business, none of which has been materially adverse, or
(ii) after making any damage, destruction, loss or other event, including changes to any laws or statutes applicable to ARIA or the Credit Extensions requested on such Credit DateARIA Business (whether or not covered by insurance) materially and adversely affecting ARIA, the Total Utilization of Revolving Commitments shall not exceed ARIA Business or the Revolving Commitments then in effectARIA Assets;
(iiig) as of such Credit Datethe transactions contemplated hereby shall have been approved by all other regulatory authorities having jurisdiction over the subject matter hereof, the if any; and
(h) all representations and warranties of ARIA contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of the Closing Date.
7.2 The conditions precedent set out in the preceding section are inserted for the exclusive benefit of TriCord and any such condition may be waived in whole or in part by TriCord at or prior to Closing by delivering to ARIA a written waiver to that Credit Date to effect signed by TriCord. In the same extent as though made on and as of event that date, except to the extent such representations and warranties specifically relate to an earlier date, conditions precedent set out in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) preceding section are not satisfied on or before the date of issuance of any Letter of CreditClosing, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders TriCord shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted released from all obligations under the circumstancesthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (TriCord Hurricane Holdings, Inc.)
Conditions Precedent. The Lender's obligation of each Lender to make any Loan, or Issuing Bank provide the Additional --------------------- Financial Accommodations to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Borrower is subject to the satisfaction, or waiver in accordance with Section 10.5, full and timely performance of the following conditions precedentcovenants prior to or contemporaneously with the execution of this Third Amendment:
A. Borrower executing and delivering, or causing to be executed and delivered to Lender, the following documents, each of which shall be in form and substance acceptable to Lender:
(i) Administrative Agent shall have received a fully An original executed and delivered Funding Notice or Issuance Notice, as the case may beTerm Note B;
(ii) after making An original Secretary's Certificate of even date herewith executed by the Credit Extensions requested on such Credit Date, the Total Utilization Secretary of Revolving Commitments shall not exceed the Revolving Commitments then in effectBorrower to Lender;
(iii) as An original Reaffirmation of such Credit DateContinuing Unconditional Guaranty of even date herewith from each of Stanton E. Ross and Infinity, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier dateInc.;
(iv▇▇) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation ▇ ▇ully executed copy of the applicable Credit Extension Blue Star Asset Purchase Agreement;
(v) Current lien searches from all appropriate jurisdictions for Blue Star;
(vi) Proof that Borrower is acquiring the assets from Blue Star pursuant to the Blue Star Asset Purchase Agreement free and clear of all liens, claims and encumbrances; and
(vii) such other agreements, documents and instruments as Lender may reasonably request;
B. No Event of Default or any event which with notice, lapse of time or both would constitute an Event of Default exists under the Loan Agreement, as amended by this Third Amendment, or a Defaultthe Other Agreements (hereinafter defined);
(v) on C. No claims, litigation, arbitration proceedings or before governmental proceedings not disclosed in writing to Lender prior to the date of issuance of any Letter of Credit, Administrative Agent hereof shall be pending or known to be threatened against Borrower and no known material development not so disclosed shall have received all other information required by occurred in any claims, litigation, arbitration proceedings or governmental proceedings so disclosed which in the applicable Issuance Notice, opinion of Lender is likely to materially or adversely affect the financial position or business of Borrower or the capability of Borrower to pay its obligations and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Creditliabilities to Lender; and
(vi) D. There shall have been no material or adverse change in the case business, financial condition or results of operations since the date of Borrower's most recently delivered financial statements to Lender.
E. Contemporaneously herewith, Borrower shall pay to Lender a Revolving Loan used fully-earned non-refundable loan fee in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds twelve thousand and no/100 Dollars ($10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b12,000.00), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.
Appears in 1 contract
Conditions Precedent. The Lender’s obligation of each Lender to make any Loan, or Issuing Bank provide the Additional Financial Accommodations to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Borrowers is subject to the satisfaction, or waiver in accordance with Section 10.5, full and timely performance of the following conditions precedentcovenants prior to or contemporaneously with the execution of this Seventh Amendment:
A. Borrowers executing and delivering, or causing to be executed and delivered to Lender, the following documents, each of which shall be in form and substance acceptable to Lender:
(i) Administrative Agent shall have received a fully An original Revolving Note of even date herewith executed and delivered Funding Notice or Issuance Notice, as by the case may beBorrowers to Lender;
(ii) after making An original Term Note A of even date herewith executed by the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effectBorrowers to Lender;
(iii) as An original Term Note B of such Credit Date, even date herewith executed by the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date Borrowers to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier dateLender;
(iv) as An original Company General Certificate of such Credit Date, no event shall have occurred and be continuing or would result from even date herewith executed by the consummation Secretary of the applicable Credit Extension that would constitute an Event of Default or a Defaulteach Borrower to Lender;
(v) on or before the An original First Amendment to Mortgage Documents of even date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required herewith by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Creditbetween Vita Foods and Lender; and
(vi) in such other agreements, documents and instruments as Lender may reasonably request;
B. No Unmatured Event of Default or Event of Default exists under the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent thatAgreement, as of such Credit Dateamended by this Seventh Amendment, or the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered Other Agreements;
C. No claims, litigation, arbitration proceedings or governmental proceedings not disclosed in writing to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, Lender prior to the making date of hereof shall be pending or known to be threatened against Borrowers and no known material development not so disclosed shall have occurred in any claims, litigation, arbitration proceedings or governmental proceedings so disclosed which in the opinion of Lender is likely to materially or adversely affect the financial position or business of any Credit Extension, additional information reasonably satisfactory to Borrower or the requesting party confirming the satisfaction capability of any of the foregoing if, Borrower to pay its obligations and liabilities to Lender; and
D. There shall have been no material or adverse change in the good faith judgment business, financial condition or results of such Agent or Requisite Lender such request is warranted under operations since the circumstancesdate of each Borrower’s most recently delivered financial statements to Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Vita Food Products Inc)
Conditions Precedent. 13.1 The following are conditions precedent to the obligation of each Lender the Underwriters to make close the transaction contemplated by this Agreement, which conditions BIP covenants to exercise its best efforts to have fulfilled at or prior to the Closing Time and the Over-Allotment Closing Time (if applicable) and which conditions may be waived in writing in whole or in part by the Underwriters:
(a) the Units and the Additional Units shall have attributes substantially as set forth in the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus;
(b) at the Closing Time and the Over-Allotment Closing Time (if applicable), BIP shall have delivered to the Underwriters a certificate, dated the Closing Date or the Over-Allotment Closing Date, as applicable, signed on behalf of BIP by any Loantwo of its officers satisfactory to the Underwriters, acting reasonably, and certifying that:
(i) except as disclosed in or contemplated by the Disclosure Package, the U.S. Prospectus and the Supplemented Canadian Prospectus, or Issuing Bank any amendments thereto:
(A) there has been, since December 31, 2011 and prior to issue the Closing Time (or the Over-Allotment Closing Time, as applicable), no material change (financial or otherwise) in the business, affairs, operations, assets, liabilities (contingent or otherwise) or capital of BIP on a consolidated basis; and
(B) no transaction of a nature material to BIP on a consolidated basis has been entered into, directly or indirectly, by BIP since December 31, 2011;
(ii) no order, ruling or determination (excluding temporary trading halts for the dissemination of information) having the effect of ceasing or suspending trading in any Letter securities of CreditBIP has been issued in the United States or any of the Qualifying Jurisdictions and, to BIP’s knowledge, no proceedings for such purpose are pending, contemplated or threatened;
(iii) the representations and warranties of BIP contained herein are true and correct in all respects as of the Closing Time (or the Over-Allotment Closing Time, as applicable), with the same force and effect as if made at and as of the Closing Time (or the Over-Allotment Closing Time, as applicable); and
(iv) BIP has complied with all terms and conditions of this Agreement to be complied with by BIP at or prior to the Closing Time (or the Over-Allotment Closing Time, as applicable), and all such matters shall in fact be true at the Closing Time (or the Over-Allotment Closing Time, as applicable);
(c) the Underwriters shall have received evidence satisfactory to them, acting reasonably, that the Units have been conditionally approved for listing on the TSX and the NYSE;
(d) at the Closing Time (or the Over-Allotment Closing Time, as applicable), the “lock-up” agreement between BAM and the Underwriters in form and substance satisfactory to the Underwriters shall be in full force and effect;
(e) the Underwriters shall have received at the Closing Time (or the Over-Allotment Closing Time, as applicable) the letters of the auditors of BIP updating each long form “comfort letter” referred to in section 6.1 to a date not more than two business days prior to the date of such letter, such letters to be in form and content satisfactory to the Underwriters and their counsel, acting reasonably;
(f) at the Closing Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received favourable legal opinions, dated the Closing Date or the Over-Allotment Closing Date, as applicable, on any Credit Datebehalf of BIP from each of Torys LLP and Weil, including the Effective Date and the Gotshal & ▇▇▇▇▇▇ Acquisition Closing Date, are subject LLP addressed to the satisfaction, or waiver in accordance Underwriters and their counsel with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, respect to such matters as the case may be;
(ii) after making the Credit Extensions reasonably be requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in Underwriters. In connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the opinions, Torys LLP and Weil, Gotshal & ▇▇▇▇▇▇ Acquisition LLP may rely on the opinions of local counsel acceptable to counsel to the Underwriters, as to form, substance and choice of counsel, acting reasonably, as to matters governed by laws of jurisdictions other than the laws of the Province of Ontario, the Province of Alberta, the laws of the State of New York and the federal laws of the United States, and may rely, to the extent appropriate in the circumstances, as to matters of fact, on certificates of officers of BIP, and others;
(g) at the Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received a 10b-5 negative assurance letter from Weil, Gotshal & ▇▇▇▇▇▇ Acquisition Financing RequirementsLLP, BIP’s U.S. legal counsel, addressed to the Underwriters and their counsel, in form and content acceptable to the Underwriters, acting reasonably;
(h) at the Closing Time (or the Over-Allotment Closing Time, as applicable), if the Underwriters shall have received a favourable legal opinion, dated the Closing Date or the Over-Allotment Closing Date, as applicable, on behalf of BIP from ▇▇▇▇▇▇▇ Global addressed to the Underwriters and their counsel with respect to such matters as may reasonably be requested by the Underwriters;
(Ai) at the aggregate amount Closing Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received a favourable legal opinion and 10b-5 negative assurance letter, dated the Closing Date or the Over-Allotment Closing Date, as applicable, from their counsel with respect to such matters as the Underwriters may reasonably request;
(j) at the Closing Time (or the Over-Allotment Closing Time, as applicable), the Underwriters shall have received the appropriate legal opinions, dated the Closing Date or the Over-Allotment Closing Date, as applicable, addressed to the Underwriters and their counsel, as to compliance with the laws of Permitted Acquisition Expenses exceeds $10,000,000 Québec relating to the use of the French language, which required opinions shall be in form and substance satisfactory to the Underwriters’ counsel, acting reasonably;
(k) at the Closing Time (or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000Over-Allotment Closing Time, then the Chief Financial Officer of Holdings as applicable), BIP shall have delivered evidence that BIP is a Compliance Certificate representing “reporting issuer” and warranting and otherwise demonstrating to the satisfaction is not listed as in default of Administrative Agent that, as of such Credit Date, the Leverage Ratio as any requirements of the last day Canadian Securities Laws, or its equivalent, in each of the most recent Fiscal Quarter Qualifying Jurisdictions;
(l) no order suspending the effectiveness of the U.S. Registration Statement shall be in effect, and no proceeding for which financial statements have been delivered such purpose, pursuant to the Lenders Rule 401(g)(2) or pursuant to Section 5.1(b)8A under the Securities Act shall be pending before or threatened by the SEC; the U.S. Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the SEC under the Securities Act (in the case of an Issuer Free Writing Prospectus, determined on a pro forma basis to the extent required by Rule 433 under the Securities Act) and in accordance with Section 6.8(d) after giving effect section 3.2 hereof; and all requests by the SEC for additional information shall have been complied with to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect reasonable satisfaction of Fiscal Quarters ending on the Representatives; and
(m) at or prior to December 25the Closing Time, 2004; BILP shall have entered into a binding subscription agreement with BAM pursuant to which BAM shall have agreed to purchase, at the Closing Time, 3,860,000 RPUs (and, at the Over-Allotment Closing Time, as applicable, such Additional RPUs as determined by BAM, required to maintain BAM’s direct and indirect interest in BIP (iiion a fully exchanged basis)) 4.75:1.00 in respect at a purchase price per RPU (or Additional RPU, if applicable) equal to the Offering Price (net of subsequent Fiscal Quarters. Any Agent commissions) and the sale of such RPUs (or Requisite Lenders Additional RPUs) shall be entitled, but not obligated to, request and receive, have been completed at or prior to the making of any Credit ExtensionClosing Time (or the Over-Allotment Closing Time, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesas applicable).
Appears in 1 contract
Sources: Underwriting Agreement (Brookfield Infrastructure Partners L.P.)
Conditions Precedent. The obligation effectiveness of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are this Amendment is subject to the satisfaction, or waiver in accordance with Section 10.5, satisfaction of the following conditions precedent:
(ia) Administrative the Borrower, the Agent, and the Required Lenders shall have executed and delivered this Amendment and consent in the space provided for that purpose below, on or before November 26, 2008;
(b) the Agent shall have received a copy of a fully executed amendment to the BMO Limited Duration Waiver extending the waiver under the BMO Limited Duration Waiver of any default under the BMO Credit Agreement that is analogous to the Subject Defaults for a period ending no earlier that the Waiver Period as extended by this Amendment, which amendment shall not contain or add to the BMO Limited Duration Waiver any other terms or provisions that are not contained in the Waiver Agreement as amended by this Amendment or that are inconsistent with the terms of the Waiver Agreement as amended by this Amendment or that are more favorable to the lenders under the BMO Credit Agreement than the terms of the Waiver Agreement as amended by this Amendment are favorable to the Syndication Parties, and delivered Funding Notice or Issuance Noticewhich otherwise shall be in form and substance reasonably satisfactory to the Agent, as and such amendment to the case may beBMO Limited Duration Waiver shall be effective;
(iic) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all a copy of a fully executed amendment to the Fairway Limited Duration Waiver extending the waiver thereunder of any default under the Receivables Purchase Agreement that is analogous to the Subject Defaults for a period ending no earlier that the Waiver Period as extended by this Amendment, agreeing to extend the existing amendments to the Amended and Restated Receivables Purchase Agreement during the Waiver Period and agreeing to continue to provide credit thereunder during the Waiver Period as extended by this Amendment, which limited duration waiver shall not contain any other information required terms or provisions that are not contained in the Waiver Agreement as amended by this Amendment or that are inconsistent with the applicable Issuance Noticeterms of the Waiver Agreement as amended by this Amendment or that are more favorable to the lenders under the Receivables Purchase Agreement than the terms of the Waiver Agreement as amended by this Amendment are favorable to the Banks, and which otherwise shall be in form and substance reasonably satisfactory to the Agent, and such other documents or information as Issuing Bank may reasonably require in connection with amendment to the issuance of such Letter of CreditFairway Limited Duration Waiver shall be effective; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (Ad) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as payment of the last day of the most recent Fiscal Quarter for which financial statements have been delivered current legal fees and expenses referred to the Lenders pursuant to in Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances9 above.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date 6.1 Conditions Precedent - PHFG and the ▇▇▇▇▇▇ Acquisition Closing Date, are Company The respective obligations of PHFG and the Company to effect the transactions contemplated by this Agreement shall be subject to the satisfaction, or waiver in accordance with Section 10.5, satisfaction of the following conditions precedent:at or prior to the Effective Time.
(ia) Administrative Agent shall have received a fully executed All corporate action necessary to authorize the execution and delivered Funding Notice or Issuance Notice, as delivery of this Agreement and consummation of the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties Merger shall have been true duly and correct in validly taken by PHFG and the Company, including approval by the requisite vote of the respective shareholders of PHFG and the Company of this Agreement, and all material respects on corporate and as shareholder action necessary to authorize the execution and delivery of such earlier date;the Bank Merger Agreements and consummation of the transactions contemplated thereby shall have been duly and validly taken by the Company Banks, the PHFG New Hampshire Bank and the PHFG Massachusetts Bank.
(ivb) as All approvals, consents and waivers from any Governmental Entity the approval, consent or waiver of such Credit Date, no event shall have occurred and be continuing or would result from which is required for the consummation of the applicable Credit Extension Merger and the Bank Mergers shall have been received and all statutory waiting periods in respect thereof have expired, provided, however, that no approval, consent or waiver referred to in this Section 6.1(b) shall be deemed to have been received if it shall include any condition or requirement that, individually or in the aggregate, would constitute an Event so materially reduce the economic or business benefits of Default the transactions contemplated by this Agreement to PHFG that had such condition or requirement been known PHFG, in its reasonable judgment, would not have entered into this Agreement.
(c) None of PHFG, the Company or their respective Subsidiaries shall be subject to any statute, rule, regulation, injunction or other order or decree which shall have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits, restricts or makes illegal consummation of the Merger or a Default;Bank Merger.
(vd) on or before The Form S-4 shall have become effective under the date of issuance of any Letter of CreditSecurities Act, Administrative Agent and PHFG shall have received all state securities laws or "blue sky" permits and other information required by the applicable Issuance Notice, and such other documents authorizations or information as Issuing Bank may reasonably require there shall be exemptions from registration requirements necessary to issue PHFG Common Stock in connection with the issuance of Merger, and neither the Form S-4 nor any such Letter of Credit; andpermit, authorization or exemption shall be subject to a stop order or threatened stop order by the Commission or any state securities authority.
(vie) in the case The shares of a Revolving Loan used PHFG Common Stock to be issued in connection with the financing of a Permitted Acquisition (other than a Revolving Loan Merger shall have been approved for listing on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not Nasdaq Stock Market's National Market, subject to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if official notice of issuance.
(Af) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings KPMG Peat Marwick LLP shall have delivered issued a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio letter dated as of the last day Effective Time to PHFG and to the Company to the effect that, based on a review of this Agreement and related agreements and the facts and circumstances then known to it, the Merger shall be accounted for as a pooling-of-interests under generally accepted accounting principles, and PHFG and the Company shall have received from the Affiliates of the most recent Fiscal Quarter for which financial statements have been delivered other party the agreements referred to in Section 5.12(b) hereof to the Lenders pursuant extent necessary to Section 5.1(b), determined on a pro forma basis ensure in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect reasonable judgment of Fiscal Quarters ending on or prior to December 25, 2004; PHFG and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders the Company that the Merger shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, accounted for in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesmanner.
Appears in 1 contract
Sources: Merger Agreement (Peoples Heritage Financial Group Inc)
Conditions Precedent. The obligation Before taking any action that would cause an adjustment increasing the then par value of each Lender the Shares issuable upon exercise of the Options above the Exercise Price, the Company shall have the right to make take any Loancorporate action that may, or Issuing Bank in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable Shares at such adjusted Exercise Price. Upon any adjustment of the Exercise Price required to issue any Letter be made pursuant to this Section 8, within 30 days thereafter the Company shall (a) cause to be filed with the Option Agent written notice thereof, which notice shall be accompanied by a certificate of Creditthe Company's independent auditors, on any Credit Date, including stating the Effective Date adjusted Exercise Price and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to adjusted number of Shares purchasable or the satisfaction, kind and amount of any securities or waiver in accordance with Section 10.5, property purchasable upon exercise of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance NoticeOption, as the case may be;, and setting forth in reasonable detail the method of calculation and the facts upon which such calculation and the facts upon which such calculation is based, which certificate shall be conclusive evidence of the correctness of such adjustment, and (b) cause to be mailed to each of the Registered Holders of the Option Certificates written notice of such adjustment. Such notice may be given in advance and included as a part of the notice required to be mailed pursuant hereto.
(i) In case at any time (a) the Company shall declare any dividend upon its Shares payable otherwise than in cash or in Shares of the Company; or (b) the Company shall offer for subscription to the holders of its Shares any additional shares of stock of any class or any other securities convertible into shares of stock or any rights to subscribe thereto; or (c) there shall be any capital reorganization or reclassification of the capital stock of the Company, or a sale of all or substantially all of the assets of the Company, or a consolidation or merger of the Company with another corporation (other than a merger in which the Company is the continuing corporation, and which does not result in any reclassification or change of the then outstanding Shares or other capital stock issuable upon exercise of the Options (other than a change in par value or a subdivision or combination of such shares); or (d) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company; then, in any one or more of said cases, the Company shall cause to be mailed to each of the Registered Holders of outstanding Options, at the earliest practicable time (and in any event not less than 20 days before any record date or other date set for definitive action), written notice of the date of which the books of the Company shall close or a record shall be taken for such dividend, distribution of, or grant of subscription rights, or such reorganization, reclassification, sale, consolidation, merger, dissolution, liquidation, or winding up shall take place, as the case may be. Such notice shall also set forth such facts as shall indicate the effect of such action (to the extent such effect may be known at the date of such notice) on the kind and amount of the shares of stock and other securities and property deliverable upon exercise of the Options. Such notice shall also specify the date as of which the record holders of the Shares shall participate in said dividend, distribution, or subscription rights or shall be entitled to exchange their shares for securities or other property deliverable upon such reorganization, reclassification, sale, consolidation, merger, dissolution, liquidation or winding up, as the case may be (on which date, in the event of voluntary or involuntary dissolution, liquidation or winding up of the Company, the right to exercise the Options shall terminate).
(ii) after making Without limiting the Credit Extensions requested on such Credit Dateobligation of the Company to provide notice to the Registered Holders of corporate actions hereunder, it is agreed that failure of the Total Utilization of Revolving Commitments Company to give notice shall not exceed the Revolving Commitments then in effect;
(iii) as of invalidate such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation corporate action of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesCompany.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender Notwithstanding any other provision in the Agreement, the Subscriber shall not be obliged to make subscribe and pay for any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of Bond unless the following conditions precedentprecedent have been satisfied by the Cut-Off Date and remains satisfied on the relevant subscription date of each tranche of the Bond:
(i) Administrative Agent shall have received a fully executed the Shares of the Company remaining listed and delivered Funding Notice or Issuance Notice, as the case may bequoted on Catalist;
(ii) after making the Credit Extensions requested listing and quotation and other requisite approval issued by the SGX-ST for the listing and quotation of the Conversion Shares on Catalist (“Listing Approval”) having been obtained and not being revoked or amended, and if any conditions are attached to the Listing Approval (“Listing Conditions”), such Credit DateListing Conditions (a) being on terms reasonably satisfactory to the Subscriber (including there being no Listing Condition imposing any moratorium or other restriction on the Subscriber in dealing with the Bonds or any Conversion Shares), (b) which are required to be fulfilled on or before the relevant subscription dates having been fulfilled on or before that date to the satisfaction of the SGX-ST or waived by the SGX-ST;
iii) all applicable governmental and regulatory approvals required in connection with the subscription of the Bonds, including, but not limited to, the Total Utilization of Revolving Commitments shall Listing Approval having being obtained and not exceed the Revolving Commitments then in effectrevoked;
(iiiiv) as of such Credit Date, the representations and all warranties contained herein and in the other Credit Documents shall be true being accurate and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier at each subscription date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) the Company not having experienced or suffered any event or series of events on or before after the date of issuance this Agreement that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, operations, properties, prospects or conditions (financial or otherwise) on the Group;
vi) each Chargor having duly executed and delivered a share charge and Form 9 charge (in respect of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with charged Shares) to the issuance of such Letter of CreditSubscriber; and
(vivii) each Chargor having complied at all times with his obligations as set out in the share charge.
viii) Subscription notice in respect of each series and tranches of the Bonds has been issued and received by the Subscriber within the relevant series and tranche notice period and in any case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other no later than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as 5.00pm of the last day of the most recent Fiscal Quarter for which financial statements have such period; and
ix) there having been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making no occurrence of any Credit Extension, additional information reasonably satisfactory to event of default at any time after the requesting party confirming date of this Agreement and the satisfaction subscription date of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstanceseach series and tranche.
Appears in 1 contract
Conditions Precedent. The obligation Debt Settlement Agreement shall be conditional upon the following being obtained and/or fulfilled within six (6) months from the date of each Lender the Debt Settlement Agreement or such extended period as the parties to make any Loan, or Issuing Bank to issue any Letter the Debt Settlement Agreement may mutually agree in writing:- (a) the approval of Credit, on any Credit Date, including the Effective Date Board of Directors of YTB in respect of the Debt Settlement and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to execution of the satisfaction, or waiver in accordance with Section 10.5Debt Settlement Agreements upon the terms and conditions contained therein; (b) YTB shall have procured the approval of its shareholders at a EGM for (i) the Proposed Share Consolidation; and (ii) the allotment and the issue, of the following relevant Settlement Shares. In the event such approval(s) is obtained subject to any conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Noticeand/or amendments, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date conditions and/or amendment being reasonably acceptable to the same extent as though made on Creditor, and as of that date, except to the extent that any such representations conditions are required to be fulfilled on or before the completion of the Debt Settlement, they are fulfilled. In addition, such approval(s) shall not be amended, withdrawn, revoked, rescinded or cancelled on and warranties specifically relate to an earlier date, in which case such representations and warranties before the date for the issuance of the relevant Settlement Shares; (c) YTB shall have been true and correct in procured all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation necessary approvals and/or consents of the applicable Credit Extension Bursa Securities or any other regulatory authorities for the Proposed Share Consolidation, the allotment and issue of all the relevant Settlement Shares, the listing of and quotation for all the relevant Settlement Shares on the Main Market of the Bursa Securities and such other relevant approvals in relation thereto and in connection therewith for the transactions contemplated under the relevant Debt Settlement Agreement and such approvals shall not be amended, withdrawn, revoked, rescinded or cancelled and, where approvals are obtained subject to any conditions and/or amendments, such conditions and/or amendment being acceptable to the Creditor, and to the extent that would constitute an Event of Default or a Default;
(v) any such conditions are required to be fulfilled on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with for the issuance of such Letter the relevant Settlement Shares, they are fulfilled; (d) without affecting the rights and obligations of Creditthe Creditor under the Debt Settlement Agreement, all other necessary approvals, consents and waivers (including any governmental, regulatory and/or corporate approvals and consents), for the transactions contemplated under the relevant Debt Settlement Agreement (in particular but without limitation the issue by YTB and the subscription by the Creditor of the relevant Settlement Shares, including any other regulatory and/or corporate approvals and consents having been obtained and remaining valid and subsisting as at the date for the issuance of the relevant Settlement Shares; and
(vie) in the case completion of a Revolving Loan used in connection the proof of debt exercise to be carried out by the external auditor of YTB to ascertain and verify the transactions relating to the respective total debt owing by the relevant subsidiary to the Creditors (“Debt”), the relevant Debt amount, corresponds with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)Settlement Amount, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as the Board of such Credit Date, Directors of YTB; and (f) the Leverage Ratio as completion of the last day Proposed Share Consolidation and Proposed Bonus Issue of Warrants as announced by the principal adviser of YTB. In the event that the conditions precedent set out above are not fulfilled or have not been waived within six (6) months from the date of the most recent Fiscal Quarter for which financial statements have been delivered relevant Debt Settlement Agreement or such extended period as the parties to the Lenders pursuant relevant Debt Settlement Agreement may mutually agree in writing, then the relevant Debt Settlement Agreement shall automatically terminate and be deemed to Section 5.1(b)be of no further legal effect whatsoever, determined on a pro forma basis in accordance with Section 6.8(d) after giving effect and none of the parties to the proposed Credit Extension, relevant Debt Settlement Agreement shall not exceed 5.00:1.00 have any claims against the other parties in respect of Fiscal Quarters ending on or prior to December 25, 2004; the relevant Debt Settlement Agreement. The respective subsidiary of YTB shall then settle the respective Settlement Amount in a way and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall manner as may be entitled, but not obligated to, request and receive, prior mutually agreed between the relevant parties to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, Debt Settlement Agreement in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstanceswriting.
Appears in 1 contract
Sources: Debt Settlement Agreement
Conditions Precedent. The obligation Each and every provision of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including this Agreement shall be contingent and become effective only upon the Effective Date execution and the delivery by S. ▇▇▇▇▇▇▇▇ Acquisition of an Option Agreement (the “Option”) granting to NGS the right to purchase from S. ▇▇▇▇▇▇▇▇, for a per share exercise price equal to ten dollars ($10.00), five percent (5%) of the issued and outstanding shares of Acquiror’s common stock, par value $0.0001 per share, as of the Transaction Closing Date, are subject to the satisfactionwhich, for purposes hereof, will take into account all outstanding options, warrants and other securities convertible into, or waiver in accordance with Section 10.5exchangeable for, shares of the following conditions precedent:
Acquiror’s capital stock (other than (i) Administrative Agent shall have received a fully executed and delivered Funding Notice options granted to employees of Acquiror or Issuance Noticethe Surviving Company under employee stock option plan(s) of the Acquiror or the Surviving Company, as the case may be;
, (ii) after making 10,000,000 warrants to purchase Acquiror common stock included in the Credit Extensions requested on such Credit DateAcquiror units issued by Acquiror in its initial public offering, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, 5,600,000 warrants purchased by the representations Acquiror’s sponsors in a private placement and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) up to 1,250,000 shares of Acquiror common stock held in escrow pursuant to that certain Stock Escrow Agreement, dated as of May 10, 2013, among Acquiror, Continental Stock Transfer & Trust Company, as escrow agent and the sponsors of Acquiror party thereto, that are subject to forfeiture as set forth therein, provided, that the number of shares subject to the Option shall be increased to reflect five percent (5%) of the foregoing shares if the condition to the release of such Credit shares from escrow is satisfied). The Option shall become effective and exercisable upon the Transaction Closing Date. For a period of five (5) years commencing on the Transaction Closing Date, no event NGS shall have occurred and be continuing or would result from the consummation not Transfer any of the applicable Credit Extension that would constitute an Event shares of Default or a Default;
(v) on or before Acquiror’s common stock purchasable upon exercise of the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require Option in connection accordance with the issuance terms thereof (such shares, the “Option Shares”); provided, however, that the foregoing restriction shall lapse as to a percentage of such Letter the Option Shares equal to the quotient (expressed as a percentage) obtained by dividing (x) the number of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the shares issued to S. ▇▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay connection with the Transaction that are Transferred by S. ▇▇▇▇▇▇▇▇ Acquisition Financing Requirements), if prior to the fifth (A5th) anniversary of the Closing Date by (y) the aggregate amount number of Permitted Acquisition Expenses exceeds $10,000,000 or (B) shares issued to S. ▇▇▇▇▇▇▇▇ in connection with the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for Transaction. In connection with the previous four Fiscal Quarters (together Transaction, the Option Shares shall be put into escrow. The Option Agreement will include a binding commitment by Acquiror to cooperate with any Permitted Acquisition agreed request made by NGS to and not yet consummated) exceeds $20,000,000, then remove any restrictive legend from the Chief Financial Officer share certificates representing the shares of Holdings shall have delivered a Compliance Certificate representing and warranting Acquiror common stock it purchases from S. ▇▇▇▇▇▇▇▇ pursuant to the Option Agreement and otherwise demonstrating facilitate the private or public sale of any such shares by NGS on a securities exchange or otherwise, in each case subject to applicable law. For the satisfaction avoidance of Administrative Agent that, as of such Credit Datedoubt, the Leverage Ratio Option shall be the same Option as in Section 7 of that certain Second Amendment, dated as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered date hereof, to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesLicense Agreement.
Appears in 1 contract
Sources: Tour Operator Agreement (Lindblad Expeditions Holdings, Inc.)
Conditions Precedent. The obligation undertaking of each Lender the Investor to make exercise a Note Warrant and to fund the Note Warrant Exercise Price in connection with any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Tranche is subject to the satisfaction, fulfillment by the Issuer (or waiver in accordance with Section 10.5thereof by the Investor), prior to or on each Note Warrant Exercise Date and on each Closing Date of each of the following conditions precedentconditions:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice the Issuer is not in material breach (or Issuance Notice, as has not remedied such breach) of the case may becovenants of the Issuer set forth in Clause 4 hereunder;
(ii) after making there is no event or change rendering any one of the Credit Extensions requested on such Credit DateWarranties set forth in Clause 5 untrue or incorrect in all material respects, the Total Utilization of Revolving Commitments shall which is continuing and has not exceed the Revolving Commitments then in effectbeen remedied;
(iii) as of such Credit Date, the representations no Material Adverse Change has occurred and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have is continuing or has not been true and correct in all material respects on and as of such earlier dateremedied;
(iv) as of such Credit Date, no event binding commitment shall have occurred and be continuing or would result from been entered into by the consummation Issuer pursuant to which a Change of the applicable Credit Extension that would constitute an Event of Default or a DefaultControl will occur;
(v) no relevant authority (including the AMF) has objected or objects to the issuance of the Notes, the Warrants or their conversion or exercise;
(vi) no occurrence that constitutes an Event of Default is outstanding and not cured within the relevant grace or remedy period;
(vii) the Commitment Period has not elapsed;
(viii) the Shares (i) shall be listed on Alternext and (ii) shall not have been suspended, as of the relevant date, by the AMF or before Euronext from trading on Alternext, nor shall suspension by the AMF or Euronext have been ordered, as of the relevant date, either (a) in writing by the AMF or Euronext or (b) by falling below the minimum listing maintenance requirements of Alternext;
(ix) the closing price of the Shares on Alternext shall be higher than 130% of the nominal value of the Shares for a period of more than sixty (60) Trading Days prior to the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of CreditRequest; and
(vix) in the case Issuer shall have at least such number of a Revolving Loan used in connection with Shares authorized, available, and approved for issuance to the financing Investor upon conversion of a Permitted Acquisition all outstanding Notes that is equal to the Principal Amount of the Notes to be issued pursuant to the Request at stake (increased by the Principal Amount of any other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)outstanding Notes, if (Aany) divided by the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio lowest Closing VWAP as of the last day date of such Request. The Investor shall have the most recent Fiscal Quarter for which financial statements have been delivered discretionary right to waive the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on total or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the partial satisfaction of any one of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesabove-mentioned conditions.
Appears in 1 contract
Sources: Agreement for the Issuance of and Subscription to Warrants (Biophytis SA)
Conditions Precedent. The obligation (a) Buyer’s obligations under this Agreement are conditioned upon satisfaction of each Lender of the following conditions and any other conditions set forth in this Agreement (collectively, “Conditions Precedent”) on or before Closing:
(i) To the extent any material and adverse change has occurred following the expiration of the Due Diligence Period regarding title to make the Property, the results of the Investigations, and the Survey, such change must be reasonably satisfactory to Buyer;
(ii) To the extent any Loanmaterial and adverse change has occurred following the expiration of the Due Diligence Period regarding the physical condition of the Property, such change must be reasonably satisfactory to Buyer; and, Buyer shall have verified, that no material or adverse developments have occurred with respect to the Property since the expiration of the Due Diligence Period;
(iii) To the extent any material and adverse change has occurred following the expiration of the Entitlements Period regarding the Property being zoned for a classification that allows use of the Property for the Intended Use, such change must be reasonably satisfactory to Buyer;
(iv) The Property must not be the subject of any pending, threatened or contemplated action or proceeding to rezone or condemn all or any material part of the Property that would prevent use of the Property for the Intended Use as determined by Buyer in Buyer’s commercially reasonable discretion, which was unknown to Buyer during the Due Diligence Period;
(v) Seller must have performed and satisfied each of the covenants and obligations of Seller under this Agreement in all material respects;
(vi) All of Seller’s representations and warranties in this Agreement must be true and correct as of Closing in all material respects;
(vii) [Intentionally Deleted];
(viii) [Intentionally Deleted]; and
(ix) Seller shall execute and deliver the Closing Documents, including but not limited to the Option Agreement and the Parking Easement Agreement and the Temporary Parking Easement Agreement, in accordance with Section 5 and the other terms and provisions of this Agreement.
(b) If all Conditions Precedent are not satisfied by Closing, Buyer shall have the right to either
(i) waive any outstanding Conditions Precedent and proceed to Closing, (ii) extend the date of Closing up to thirty (30) days to satisfy any outstanding Conditions Precedent, or Issuing Bank (iii) terminate this Agreement by delivering written notice to issue any Letter of CreditSeller. If Buyer terminates this Agreement, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents Money shall be true refunded to Buyer if any Condition Precedent not being satisfied constitutes a Seller default under Section 11(a) of this Agreement, and correct in all material respects on upon any such termination, this Agreement shall be void, and as of that Credit Date to the same extent as though made on and as of that dateneither Buyer nor Seller will have any further rights or obligations under this Agreement, except to the extent such representations and warranties specifically relate to an earlier date, in those obligations which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesexpressly survive termination.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions Precedent. The obligation of each Lender to make any Loanfund the initial Loans, or Issuing Bank and to issue any or cause to be issued the initial Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are is subject to the satisfaction, satisfaction or waiver in accordance with Section 10.5, on or before the date hereof of the following conditions precedent:
(ia) Administrative Agent Lender shall have received a fully executed each of the agreements, opinions, reports, approvals, consents, certificates and delivered Funding Notice or Issuance Notice, other documents set forth on the closing document list attached hereto as Schedule 17(a) (the “Closing Document List”) in each case may bein form and substance satisfactory to Lender;
(iib) after making the Credit Extensions requested on such Credit DateSince December 31, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date2007, no event shall have occurred and be continuing which has had or would result from the consummation reasonably be expected to have a Material Adverse Effect on Borrower or any of the applicable Credit Extension that would constitute an Event of Default or a Defaultits Subsidiaries, as determined by Lender in its sole discretion, determined in good faith;
(vc) Borrower shall have paid in full of all fees and expenses payable by it under the Fee Letter or otherwise in connection herewith, on or before disbursement of the initial Loans hereunder (or an irrevocable authorization to pay such fees and expenses out of the proceeds of the Loan on the date of the initial Credit Event);
(d) Lender shall have determined that immediately after giving effect to (A) the making of the initial Loans, if any, requested to be made on the date hereof, (B) the issuance of any Letter the initial Letters of Credit, Administrative Agent shall have received if any, requested to be made on such date, (C) the payment of all other information required by the applicable Issuance Noticefees due upon such date, and such other documents (D) the payment or information as Issuing Bank may reasonably require reimbursement by Borrower of Lender for all closing costs and expenses incurred in connection with the issuance transactions contemplated hereby, Borrower has Excess Availability plus unrestricted cash on deposit in Borrower’s account(s) with Lender and Bank of such Letter America of Credit; andnot less than Ten Million and No/100 Dollars ($10,000,000.00);
(vie) in Lender shall have received (i) unaudited financial statements for Borrower for the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇fiscal quarters ended December 31, 2007 and ▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇, ▇▇▇▇, (▇▇ Acquisition Financing Requirements), if (A▇) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses audited financial statements for Permitted Acquisitions Borrower for the previous four Fiscal Quarters period from October 1, 2006 through September 30, 2007, and (together iii) financial due diligence;
(f) Lender shall have received (i) income statements, balance sheets, and cash flow statements prepared by Borrower and giving effect to the Loans, the use of proceeds from the Loans and (ii) projections on a quarterly basis for the fiscal year ending September 30, 2008 and on an annual basis for the fiscal years ending September 30, 2009 and September 30, 2010;
(g) Lender shall have received a field audit examination of Borrower and its Subsidiaries and the collateral report requested by Lender from Borrower and the results thereof shall be satisfactory to Lender in its sole discretion and Lender shall have reviewed such collateral report and any other due diligence reports, subject to the confidentiality provisions contained herein;
(h) Lender shall have received the results of recent tax, ERISA, judgment and Uniform Commercial Code lien searches in each relevant jurisdiction with respect to each Obligor, and such searches shall reveal no liens on any of the assets of such Obligors except for liens permitted by this Agreement or to be released at closing;
(i) All documents and instruments required to perfect Lender’s security interest in the Collateral shall have been executed and be in proper form for filing, and in connection with any Permitted Acquisition agreed Collateral constituting real property, Lender shall have received such title insurance policies, surveys, permits and other customary documentation in connection therewith as requested by Lender;
(j) Lender shall be reasonably satisfied with the insurance program to be maintained by Borrower and not yet consummatedits Subsidiaries;
(k) exceeds $20,000,000, then Lender shall have received a solvency certificate from the Chief Financial Officer of Holdings Borrower, which shall have delivered a Compliance Certificate representing document the solvency of Borrower and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) its consolidated Subsidiaries after giving effect to the proposed Credit ExtensionLoans and the other transactions contemplated hereby;
(l) Lender shall have received such legal opinions as Lender may reasonably request;
(m) Lender shall be satisfied in its sole discretion with the results of its legal and business due diligence;
(n) Each of the representations and warranties made by each Obligor in this Agreement or in any Other Agreement shall be true and correct on and as of the date first made and on and as of the date of the funding of the Loans;
(o) No Event of Default shall have occurred and be continuing on the date of funding of the Loans or after giving effect to the extensions of credit requested to be made on such date;
(p) All licenses, permits, franchises, approvals, registrations, notifications, exemptions, permissions or other authorizations (collectively “Authorizations”) of any governmental authority or third party necessary to be obtained by an Obligor in connection with the continuing operations of Borrower and its Subsidiaries and the transactions contemplated hereby, shall not exceed 5.00:1.00 have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby, except for such Authorizations the failure to obtain could not, individually or in the aggregate, result in a Material Adverse Effect on Borrower or any of its Subsidiaries;
(q) Lender shall have received such background checks with respect of Fiscal Quarters ending on or prior to December 25Borrower, 2004; its senior officers and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders equity interest holders as Lender shall require and the results thereof shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, Lender in the good faith judgment of such Agent or Requisite its sole discretion;
(r) Obligors shall have executed and delivered to Lender such request is warranted under documentation and agreements necessary to establish a banking relationship with Bank of America and providing for standard cash management services;
(s) The Obligors shall have executed and delivered to Lender all such other documents, instruments, certificates, opinions and agreements which Lender determines are reasonably necessary to consummate the circumstancestransactions contemplated hereby.
Appears in 1 contract
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, This Amendment No. 2 shall become effective as of the following first date (the “Amendment No. 2 Effective Date”) when each of the conditions precedentset forth in this Section 4 shall have been satisfied or waived:
(ia) The Administrative Agent shall have received a fully duly authorized, executed and delivered Funding Notice or Issuance Noticecounterpart of the signature page to this Amendment No. 2 from each Loan Party named on the signature pages hereto and each Revolving Lender.
(b) The Administrative Agent shall have received from the Borrower a non-refundable upfront fee for the account of each Revolving Lender equal to (i) for the aggregate principal amount of each Revolving Lender’s Revolving Commitment in excess of its Existing Revolving Commitment (such amount, as the case may be;
an “Excess Commitment Amount”), 0.375% of such Excess Commitment Amount and (ii) after making for the aggregate principal amount of each Revolving Lender’s Revolving Commitment equal to its Existing Revolving Commitment, 0.15% of such amount, in each case on the Amendment No. 2 Effective Date.
(c) All costs, fees and expenses (including, without limitation, legal fees and expenses) contemplated and to the extent required by the Credit Extensions requested on such Credit DateAgreement, the Total Utilization of Revolving Commitments Engagement Letter and any other letter agreement between the Borrower and any Arranger relating to the transactions contemplated hereby, and which are payable to the Amendment No.2 Lead Arrangers (as defined in Exhibit A hereto) or any other Arranger or the Administrative Agent shall not exceed have been paid to the Revolving Commitments then in effect;extent due.
(iiid) as No Default or Event of such Credit Date, Default shall have occurred or be continuing or would occur immediately after giving effect to this Amendment No. 2.
(e) Each of the representations and warranties contained herein and made by any Loan Party set forth in the other Credit Documents Section 3 hereof shall be true and correct in all material respects (provided that, any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of that Credit the Amendment No. 2 Effective Date to with the same extent effect as though made on and as of that such date, except to the extent such representations and warranties specifically expressly relate to an earlier date, date (in which case such representations and warranties shall have been be true and correct in all material respects (or if any such representation and warranty is qualified by “materiality,” “material adverse effect” or similar language, shall be true and correct in all respects (after giving effect to any such qualification therein)) on and as of such earlier date;).
(ivf) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, The Administrative Agent shall have received all other information required a certificate of the Borrower, dated the Amendment No. 2 Effective Date, executed by a Responsible Officer of the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection Borrower certifying compliance with the issuance requirements set forth in clauses (d) and (e) of such Letter of Credit; andthis Section 4.
(vig) in On the case Amendment No. 2 Effective Date, the Administrative Agent shall have received a customary written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 2 Effective Date) of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the i) ▇▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay & ▇▇▇▇▇▇▇▇ Acquisition Financing Requirements)LLP, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating counsel to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; Loan Parties and (iiiii) 4.75:1.00 local counsel in respect each jurisdiction in which a Loan Party is organized and the laws of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitledwhich are not covered by the opinion referred to in (i) above, but not obligated to, request in each case in form and receive, prior to the making of any Credit Extension, additional information substance reasonably satisfactory to the requesting party confirming Administrative Agent.
(h) The Administrative Agent shall have received a customary certificate from each Loan Party, dated the satisfaction Amendment No. 2 Effective Date, signed by a Responsible Officer of such Loan Party, and attested to by the secretary or any assistant secretary of such Loan Party, with appropriate insertions, together with (a) certified copies of the foregoing ifcertificate or articles of incorporation and by-laws (or other equivalent organizational documents), as applicable, of such Loan Party, (b) customary resolutions of such Loan Party referred to in such certificate, (c) incumbency or specimen signatures which identify by name and title of such Responsible Officer or authorized signatory of such Loan Party authorized to sign this Amendment No. 2, and (d) a good standing certificate from the applicable Governmental Authority of such Loan Party’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Amendment No. 2 Effective Date and certifying as to the good standing of such Loan Party; provided that in the case of preceding clause (a), such documents shall not be required to be delivered with respect to any Person that was a Loan Party immediately prior to the Amendment No. 2 Effective Date if such certificate includes a certification by such Responsible Officer that the applicable organizational documents delivered to the Administrative Agent in connection with the initial funding of Term Loans on the Closing Date remain in full force and effect and have not been amended, modified, revoked or rescinded since the Closing Date.
(i) The Borrower shall have (i) repaid (or caused to be repaid) all Revolving Loans outstanding under the Existing Revolving Facility immediately prior to the Amendment No. 2 Effective Date (such Revolving Loans, the “Existing Revolving Loans”) and (ii) paid to all Revolving Lenders (as defined in the Credit Agreement) (A) holding Existing Revolving Loans all accrued and unpaid interest on their Existing Revolving Loans and (B) all accrued and unpaid facility fees contemplated by Section 2.09 of the Credit Agreement, in each case to, but not including, the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstances.Amendment No .2
Appears in 1 contract
Sources: Credit Agreement (Donnelley Financial Solutions, Inc.)
Conditions Precedent. The obligation effectiveness of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, amendments contained in Section 2 hereof are subject to the satisfaction, on or waiver in accordance with Section 10.5before the date hereof, of all of the following conditions precedentprecedent in form and substance satisfactory to Agent and Lead Arranger:
(a) Agent shall have received this Amendment, duly executed and delivered by each Obligor and each Lender;
(b) No Default or Event of Default shall exist on the Third Amendment Effective Date after giving effect to the terms of this Amendment, and Agent and Lead Arranger shall be satisfied that, after giving effect to the terms of this Amendment, Borrowers will not be in default under any Material Contract, including, without limitation, in respect of the debt limitations contained in the Indenture;
(c) No material adverse change in the business, assets, properties, liabilities, operations or condition of Borrowers shall, in the opinion of Agent or Lead Arranger, occur either before or immediately after giving effect to the terms of this Amendment;
(d) Agent and Lead Arranger shall have received (i) results of updated field examinations and appraisals of the Collateral, (ii) current searches of appropriate filing offices showing that no Liens have been filed and remain in effect against any Obligor except Liens permitted pursuant to the Loan Agreement, (iii) monthly financial projections of Borrowers and Availability projections for Fiscal Year 2012, (iv) annual financial projections of Borrowers and Availability Projections for Fiscal years 2013 through 2017, and (v) interim financial statements as of November 26, 2011, in each case, in form and substance acceptable to Agent and Lead Arranger;
(e) Borrowers shall have Availability equal to or greater than $40,000,000 immediately after giving effect to the terms of this Amendment (including after any adjustments to the Borrowing Base contemplated hereby);
(f) Agent, Lead Arranger and Lenders shall have received payment of all fees and expenses to be paid by Borrowers to them on the date of this Amendment as provided in that certain Fee Letter dated November 9, 2011 and as provided in this Amendment;
(g) Agent and Lead Arranger shall have received signed commitments from Lenders totaling an aggregate amount not less than $200,000,000;
(h) Agent shall have received one or more duly executed and delivered counterparts of a pledge agreement pursuant to which Intertape Polymer Group Inc., a corporation organized under the Canada Business Corporations Act, pledges to Agent, for its benefit and for the benefit of the other Secured Parties, 100% of the Equity Interests of Intertape Polymer Europe GmbH, together with the certificates representing such Equity Interests (if any) and corresponding undated powers endorsed in blank (if applicable);
(i) Administrative Agent shall have received a fully certificate executed by each Obligor’s Secretary or Assistant Secretary certifying that attached to such certificate are (i) true, correct and delivered Funding Notice complete copies of the resolutions of such Obligor’s directors or Issuance Noticesimilar governing body and, as if required, owners, authorizing the case may beexecution, delivery and performance of the Third Amendment Documents, (ii) true, correct and complete copies of such Obligor’s Organic Documents, and (iii) examples of the signatures of each Obligor’s officers or agents authorized to execute and deliver the Third Amendment Documents;
(iij) after making Agent shall have received a current certificate issued by the Credit Extensions requested on Secretary of State or other analogous governmental official of Canada or any Province thereof or the State of each Obligor’s jurisdiction of organization, certifying that such Credit Date, the Total Utilization Obligor is in compliance with all applicable organizational requirements of Revolving Commitments shall not exceed the Revolving Commitments then in effectsuch jurisdiction;
(iiik) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information certificates of insurance and endorsements required under the Loan Agreement;
(l) Agent shall have received opinions of counsel to the Obligors addressed to Agent and the Lenders covering matters customary for transactions of the type contemplated by the applicable Issuance Notice, this Amendment and such other documents or information matters as Issuing Bank Agent and its counsel may reasonably require in connection with the issuance of such Letter of Credit; andrequest;
(vim) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings Agent shall have delivered a Compliance Certificate representing received such other documents and warranting instruments as Agent may reasonably request, in each case, in form and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information substance reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesAgent.
Appears in 1 contract
Sources: Loan and Security Agreement (Intertape Polymer Group Inc)
Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective Date Administrative Agent’s and the ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance Lenders’ agreement hereunder is contingent upon Obligors’ compliance with Section 10.5, of the following conditions precedent:. Unless otherwise specified below, each condition precedent must be satisfied no later than June 30, 2020 in order for the Agreement to become effective.
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice no Default or Issuance Notice, as Event of Default (other than the case may be;
(iiSpecified Defaults) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event or Forbearance Default shall have occurred and be continuing or would result from the consummation as of the applicable Credit Extension that would constitute an Event date of Default or a Defaultthis Agreement and immediately after giving effect hereto;
(vii) on or before prior to the date of issuance of any Letter of Creditthis Agreement, Borrower shall deliver to Administrative Agent shall have received all other information required by a fully executed copy of the applicable Issuance Noticeengagement letter with Lenders’ financial advisor, Ducera Partners LLC (“Ducera”), and such other documents or information as Issuing Bank may reasonably require in connection the fee reimbursement letter with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇Administrative Agent’s counsel, ▇▇▇▇▇ Acquisition Closing Date Day, in an aggregate principal amount not each case in the form previously provided to exceed $10,000,000 used Borrower or its counsel, and Borrower shall have, on or prior to pay ▇July 1, 2020 (a) delivered to ▇▇▇▇▇ Acquisition Financing Requirements)Day the required retainer under such agreement, if (Ab) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses paid to ▇▇▇▇▇ Day all legal fees incurred-to-date and for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating which an invoice has been provided prior to the satisfaction execution of Administrative Agent thatthis Agreement, as of such Credit Dateand (c) paid to Ducera the monthly fee set forth in the Ducera engagement letter for June and July, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d2020;
(iii) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25the date of this Agreement, 2004; Borrower shall deliver to Administrative Agent a fully executed copy of forbearance agreement by and among Obligors and a majority of Senior Noteholders holding the 2023 Notes, which forbearance agreement (a) shall have a scheduled expiration date not earlier than 11:59 p.m. (Eastern Daylight Time) on July 15, 2020, (b) shall not include or be contingent upon the delivery of any collateral or payments on, or otherwise in respect of, the Senior Notes, including, without limitation, any forbearance or other fee arising under such agreement, and (iiic) 4.75:1.00 shall otherwise be in respect of subsequent Fiscal Quarters. Any Agent or form and substance acceptable to Requisite Lenders (the “Noteholder Forbearance Agreement”);
(iv) Borrower shall be entitled, but not obligated to, request have reimbursed Administrative Agent for any other fees and receive, expenses for which reimbursement is requested in accordance with the provisions of the Loan Documents prior to the making execution of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesthis Agreement.
Appears in 1 contract
Sources: Forbearance Agreement (CBL & Associates Limited Partnership)
Conditions Precedent. Purchaser and the Seller ------------------------------------------------ The obligation respective obligations of Purchaser and the Seller to effect the transactions contemplated by this Agreement at any Closing Date shall be subject to satisfaction or waiver by each Lender party of the following conditions at or prior to make such Closing Date:
(a) Neither Purchaser nor the Seller shall be subject to any Loanorder, decree or Issuing Bank to issue injunction of a court or agency of competent jurisdiction which enjoins or prohibits consummation of the transactions contemplated by this Stock Purchase Agreement.
(b) The NBI Group shall have executed and delivered an absolute and unconditional release of any Letter and all claims the NBI Group has or may have against Seller, Bancorp, ▇▇▇▇▇, and Purchaser, and their respective directors, officers, employees and agents, in all material respects in the form attached hereto as Exhibit D, except that the foregoing release may exclude from coverage and release thereunder any of CreditSeller, on Bancorp, ▇▇▇▇▇, Purchaser or any Credit director of Bancorp if such person or entity does not contemporaneously therewith execute a similar release in favor of the NBI Group.
(c) Seller shall have executed and delivered, effective as of the Initial Closing Date, including an absolute and unconditional release of any and all claims that Seller has or may have against Bancorp, ▇▇▇▇▇ or any of their respective affiliates, directors, officers, employees or agents related to any action or inaction by any of them in connection with the Effective Date Shares, the Seller's efforts to sell the Shares, the Loan and any dealings, negotiations, discussions, agreements or contracts between Seller and any party regarding the Shares, Bancorp or ▇▇▇▇▇, such release to be in the form attached hereto as Exhibit E; except that such release may exclude from coverage and release thereunder any director of Bancorp who does not contemporaneously therewith execute and deliver the release required by Section 6.2(g) (each director of Bancorp who is entitled to a release hereunder is referred to herein as a "Released Director").
(d) Prior to the execution hereof, Purchaser and Seller shall have received the opinion of ▇▇▇▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the & ▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)that the execution, if (A) the aggregate amount delivery and performance of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to this Agreement and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as consummation of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, Tender Offer shall not exceed 5.00:1.00 result in respect the Purchaser, any of Fiscal Quarters ending on his Permitted Assignees, or prior any of their "Affiliates" or "Associates" becoming an "Acquiring Person" or an "Adverse Person" (as such terms are defined in the Bancorp Rights Agreement) under the Bancorp Rights Agreement or enable or require any Rights under the Bancorp Rights Agreement to December 25become exercisable, 2004; such opinion to be in form and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably substance satisfactory to the requesting party confirming the satisfaction of any of the foregoing ifSeller, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesPurchaser and their respective counsel.
Appears in 1 contract
Sources: Stock Purchase Agreement (Abigail Adams National Bancorp Inc)
Conditions Precedent. The obligation of each Lender Buyer to make any Loanconsummate the transaction hereunder shall be subject to the fulfillment on or before the Closing Date of the following conditions, which may be waived by Buyer in its sole discretion (collectively, “Conditions Precedent”):
(a) No suit, action, or Issuing Bank other proceeding shall be pending before any court or governmental agency by which any third party is seeking to issue restrain or prohibit or to obtain damages or other relief in connection with this Agreement or the consummation of the transactions contemplated herein.
(b) The issuance of the Title Policy (or a written commitment therefor) subject only to the Permitted Exceptions. Buyer shall use diligent, good faith efforts to cause the Title Policy to be issued.
(c) There shall be no material adverse change to the Property since the end of the Examination Period; provided, however, that this Section 14(c) shall expressly exclude any Letter changes to the Property and/or the Improvements resulting from the Code Violations and/or any fines assessed against the Property in connection with the Code Violations. If any one of Credit, on any Credit the above Conditions Precedent shall not have been satisfied as of the Closing Date, including then Buyer shall provide Seller with written notice of such failure and Seller shall have the Effective right to extend the Closing Date in order to cure such failure; provided, however, that any such extension shall, in no event, exceed fifteen (15) calendar days (the “Outside Closing Date”). If Seller fails to satisfy any pending Conditions Precedent on or before the Outside Closing Date, then Buyer, at its option, may either waive such Conditions Precedent in writing or terminate this Agreement by written notice thereof to Seller, in which event the parties shall have no further right or obligation hereunder, other than with respect to obligations hereunder that expressly survive the termination of this Agreement, and the ▇▇▇▇▇▇▇ Acquisition Closing Date, are subject Money shall be promptly paid to Buyer. Notwithstanding anything stated to the satisfactioncontrary in this Agreement, any matter related to a rezoning, land use amendment, alley or waiver in accordance with Section 10.5street closure, plat or any other zoning or land use matter affecting the Property, whether applied for, pending or approved (including, without limitation, the Re-Plat of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed Property), is not, and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Datebe deemed, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesCondition Precedent.
Appears in 1 contract
Sources: Purchase and Sale Agreement (ERBA Diagnostics, Inc.)
Conditions Precedent. (a) The obligation effectiveness of this Agreement and the obligations of each Initial Incremental Revolving Loan Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, Credit Extension under the Incremental Revolving Loan Commitment on any Credit Date, including the Effective Closing Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are shall be subject to the satisfaction, or waiver in accordance with Section 10.511.05 of the Credit Agreement, of the following conditions precedenton or before the Closing Date:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit the Closing Date, the representations and warranties contained herein in the Credit Agreement and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit the Closing Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
(ivii) as of such Credit the Closing Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension on the Closing Date that would constitute an Event of Default or a Default;
(viii) on or before the date of issuance of any Letter of Credit, Administrative Agent and the Lead Arranger shall have received (A) a customary solvency certificate from the chief financial officer of the Borrower, (B) customary opinions of counsel to the Borrower and the Guarantors, (C) customary corporate resolutions and closing certificates and (D) if requested by any Initial Incremental Revolving Loan Lender, a Revolving Loan Note executed by the Borrower in favor of such Initial Incremental Revolving Loan Lender;
(iv) all fees due to the Administrative Agent, the Lead Arranger and the Initial Incremental Revolving Loan Lenders as agreed by the Borrower and the Initial Incremental Revolving Loan Lenders, and all expenses to be paid or reimbursed under the Engagement Letter or any Credit Document to the Administrative Agent, the Lead Arranger and the Initial Incremental Revolving Loan Lenders that have been invoiced at least two Business Days prior to the Closing Date, shall have been paid;
(v) so long as requested at least ten Business Days prior to the Closing Date, each Initial Incremental Revolving Loan Lender shall have received at least three Business Days prior to the Closing Date, all documentation and other information with respect to the Borrower and the Guarantors that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act;
(vi) the Administrative Agent and the Lead Arranger shall have received: (A) the audited consolidated balance sheets and related consolidated statements of operations, cash flows and shareholders’ equity of the Borrower for the three most recently completed Fiscal Years of the Borrower ended at least 90 days before the Closing Date, accompanied by an unqualified report thereon by their respective independent registered public accountants; (B) the unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Borrower for each subsequent Fiscal Quarter of the Borrower ended at least 45 days before the Closing Date; and (C) pro forma balance sheet and related statement of operations of the Borrower and its Subsidiaries as of and for the most recent Fiscal Year for which audited financial statements are required and any interim period and as of and for the period ending with the latest annual or quarterly period of the Borrower covered by clauses (A) and (B) above, in each case after giving effect to the Credit Extension under this Agreement (the “Pro Forma Financial Statements”), all of which financial statements shall be prepared in accordance with generally accepted accounting principles in the United States and comply with in all material respects the requirements of Regulation S-X under the Securities Act and all other information required by accounting rules and regulations of the Securities and Exchange Commission promulgated thereunder applicable Issuance Notice, to a registration statement under the Securities Act on Form S-1 (except that it is understood and such other documents or information as Issuing Bank agreed that the Pro Forma Financial Statements for any last 12-month period which does not correspond with a Fiscal Year end may reasonably require in connection not comply with the issuance of such Letter of CreditRegulation S-X only insofar that Regulation S-X contemplates Fiscal Year and interim period pro forma financial statements rather than “last 12-month” pro forma financial statements); and
(vivii) as of the Closing Date, (x) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with each of the case covenants set forth in Article 7 of a the Credit Agreement as of the last day of the most recently ended Fiscal Quarter or Fiscal Year for which financial statements have been delivered pursuant to Section 5.01(a) or (b) of the Credit Agreement after giving effect to the Incremental Revolving Loan used in connection with Commitment and treating the financing of a Permitted Acquisition Incremental Revolving Commitment as fully drawn and (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (Ay) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the pro forma Total Leverage Ratio as of the last day of the most recent recently ended Fiscal Quarter or Fiscal Year for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d5.01(a) or (b) of the Credit Agreement (after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; Incremental Revolving Loan Commitment and (iiitreating the Incremental Revolving Loan Commitment as fully drawn) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior less than 3.25 to 1.00.
(b) The obligation of each Incremental Revolving Loan Lender to make any Loan on any Credit Date after the Closing Date is subject to the making of any Credit Extensionsatisfaction, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any or waiver in accordance with Section 11.06 of the foregoing ifCredit Agreement, of the conditions set forth in Section 3.02 of the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesCredit Agreement.
Appears in 1 contract
Sources: Incremental Revolving Joinder Agreement (Cypress Semiconductor Corp /De/)
Conditions Precedent. The A It shall be a condition to Buyer's obligations to close that all of the representations and warranties of the Contributing Partners are true and correct as of the Closing; B It shall be a condition to Buyer's obligation to close that there are at Closing 95apartment units in rentable condition, which are all in compliance with federal, state, county or local laws, ordinances, rules and regulations; C Buyer shall have thirty (30) days after the date of each Lender this Agreement (the "Due Diligence Period") within which to make any review and inspect the Property and the Other Items (including, but not limited to, performing engineering and Phase I environmental studies), the Partnership's books and records pertaining to the Property and the Other Items, matters relating to zoning compliance and compliance by the Property and the Other Items with other applicable governmental regulations, the market in which the Property operates, the documents relating to the Existing Loan, the tax assessment on the Property as it relates to the Purchase Price and to the assessment on comparable properties and such other matters as Buyer shall deem reasonably necessary or Issuing Bank to issue any Letter of Credit, on any Credit Date, including appropriate in connection with the Effective Date Property and the Other Items. If Buyer determines that it does not wish to purchase the Partnership Interests as a result of its findings during the Due Diligence Period and notifies the Representative of such decision within the Due Diligence Period, this Agreement shall be null and void and neither party shall have any further rights or obligations under this Agreement. Buyer's failure to object within the Due Diligence Period shall be deemed a waiver by Buyer of the condition contained in this Section 16(C). D It shall also be a condition to Buyer's obligation to close that during the Due Diligence Period, the Buyer shall obtain the approval of the Board of Directors (the "Board") of its general partner - Home Properties of New York, Inc., - to the acquisition of the Partnership Interests on the terms and conditions described herein. If Buyer does not obtain the Board's approval within the Due Diligence Period, the Buyer shall promptly notify the Representative in which event this Agreement shall be null and void and neither party shall have any further rights or obligations under this Agreement. Buyer's failure to notify the Representative within the Due Diligence Period of its failure to obtain Board approval shall be deemed a waiver by Buyer of the conditions contained in this Section 16(E). E It shall be a condition to Buyer's obligation to close that as of the Closing Date each of the Contributing Partners shall have provided the Buyer with an indemnification in the form of Exhibit B hereto and shall, upon execution of this Agreement, also have executed the Agency Agreement in the form attached hereto as Exhibit C whereby ▇▇▇▇▇▇ Acquisition Closing Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(i) Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit Date, the Total Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in effect;
(iii) as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit; and
(vi) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇. ▇▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements)(the "Representative") is appointed as the representative of the Contributing Partners. It is understood that the contingencies set forth herein are for Buyer's benefit and may be waived by Buyer at any time. If the above contingencies are not satisfied or waived by the Buyer, if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings Buyer shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating the right to terminate this Agreement by written notice to the satisfaction of Administrative Agent that, as Representative. In the event of such Credit Datea termination, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders this Agreement shall be entitled, but not obligated to, request null and receive, prior to the making of void and neither party shall have any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent further rights or Requisite Lender such request is warranted obligations under the circumstancesthis Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Home Properties of New York Inc)
Conditions Precedent. Mutual Conditions Precedent of Orezone, New Orezone and IAMGOLD
5.1 The obligation respective obligations of each Lender Orezone, New Orezone and IAMGOLD to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, including complete the Effective Date and the ▇▇▇▇▇▇ Acquisition Closing Date, are Arrangement shall be subject to the satisfaction, at or waiver in accordance with Section 10.5before the Effective Time, of the following conditions precedent, each of which may only be waived, in whole or in part, by mutual consent of Orezone, New Orezone and IAMGOLD:
(ia) Administrative Agent the Interim Order shall have received been granted in form and substance satisfactory to the Parties hereto, acting reasonably, and shall not have been set aside or modified in a fully executed manner unacceptable to the Parties hereto, acting reasonably, on appeal or otherwise;
(b) the Arrangement Resolution shall have been approved by the Orezone Shareholders at the Orezone Meeting in accordance with the provisions of the Interim Order;
(c) the Final Order shall have been granted in form and delivered Funding Notice substance satisfactory to the Parties hereto, acting reasonably, and shall not have been set aside or Issuance Noticemodified in a manner unacceptable to the Parties hereto, acting reasonably, on appeal or otherwise;
(d) each Pre-Acquisition Reorganization including, without limitation, the Essakane Transfer, the Orezone Inc. Transfer and the New Orezone Cash Contribution, shall have been completed;
(e) New Orezone shall be deemed to be a reporting issuer under the Securities Laws of the Province of Ontario on the Effective Date;
(f) the New Orezone Shares shall have been conditionally approved to be listed on either the TSX or the TSX Venture Exchange;
(g) the TSX shall have conditionally approved the listing thereon and the NYSE shall have authorized the listing thereon, subject to official notice of issuance, of the IAMGOLD Shares to be issued pursuant to the Arrangement as of the Effective Date, or as soon as possible thereafter;
(h) the distribution of the IAMGOLD Shares and New Orezone Shares and any other securities of IAMGOLD issued in exchange for securities of Orezone in the United States pursuant to the Arrangement shall be exempt from registration requirements under the 1933 Act and, except with respect to Persons deemed “affiliates” of IAMGOLD or New Orezone, as the case may be;
(ii) after making , under the Credit Extensions requested on such Credit Date1933 Act, the Total Utilization IAMGOLD Shares and New Orezone Shares and any other securities of Revolving Commitments IAMGOLD issued in exchange for securities of Orezone to be distributed in the United States pursuant to the Arrangement shall not exceed be subject to resale restrictions in the Revolving Commitments then United States under the 1933 Act, provided however, that Orezone Convertible Securities, the Convertible Debenture or any IAMGOLD securities issued in exchange therefor (other than the Orezone Options or any options to purchase IAMGOLD Shares issued in exchange therefor) may not be exercised in the United States on behalf or for the benefit of, a U.S. person (as such term is defined in Regulation S under the 1933 Act), unless registered under the 1933 Act or an exemption is available from the registration requirements of the 1933 Act and any applicable state securities laws, and the holder furnishes to IAMGOLD an opinion of counsel or other documentation satisfactory to IAMGOLD to such effect;
(iiii) as of such Credit Datethe Parties hereto shall have each filed all notices and information required or desirable, the representations and warranties contained herein and in the other Credit Documents Parties' joint discretion, acting reasonably and (i) The Commissioner of Competition (“Commissioner”) shall be true have issued an advance ruling certificate pursuant to section 102 of the Competition Act; or (ii)(A) the waiting period under section 123 of the Competition Act shall have expired, been terminated or waived pursuant to section 113(c) of the Competition Act and correct in all material respects on and as of that Credit Date to (B) the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier dateCommissioner shall have advised IAMGOLD, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(iv) as of such Credit Datewriting, that she has no event shall have occurred and be continuing or would result from the consummation intention to file an application under Part VIII of the applicable Credit Extension that would constitute an Event of Default or a Default;
(v) on or before the date of issuance of any Letter of Credit, Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as Issuing Bank may reasonably require Competition Act in connection with the issuance of such Letter of Creditarrangement and the other transactions contemplated by this Agreement; and
(vij) in the case of a Revolving Loan used in connection with the financing of a Permitted Acquisition (other than a Revolving Loan on the ▇▇▇▇▇▇ Acquisition Closing Date in an aggregate principal amount this Agreement shall not to exceed $10,000,000 used to pay ▇▇▇▇▇▇ Acquisition Financing Requirements), if (A) the aggregate amount of Permitted Acquisition Expenses exceeds $10,000,000 or (B) the aggregate amount of Permitted Acquisition Expenses for Permitted Acquisitions for the previous four Fiscal Quarters (together with any Permitted Acquisition agreed to and not yet consummated) exceeds $20,000,000, then the Chief Financial Officer of Holdings shall have delivered a Compliance Certificate representing and warranting and otherwise demonstrating to the satisfaction of Administrative Agent that, as of such Credit Date, the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which financial statements have been delivered to the Lenders terminated pursuant to Section 5.1(b), determined on a pro forma basis in accordance with Section 6.8(d) after giving effect to the proposed Credit Extension, shall not exceed 5.00:1.00 in respect of Fiscal Quarters ending on or prior to December 25, 2004; and (iii) 4.75:1.00 in respect of subsequent Fiscal Quarters. Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is warranted under the circumstancesArticle 7 hereof.
Appears in 1 contract
Sources: Arrangement Agreement (Iamgold Corp)