Conditions to Initial Closing. The obligation of each Lender to make the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be subject to the receipt by Administrative Agent of each agreement, document and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion: (a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter; (b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect; (c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents; (d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations; (e) Administrative Agent and the Lenders shall have received and approved all requested financial statements and projections; (f) intentionally omitted; (g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance; (h) Intentionally omitted; (i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility; (j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealable; (k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure; (l) Intentionally omitted; (m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and (n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably request.
Appears in 2 contracts
Sources: Credit Agreement (Collegiate Pacific Inc), Credit Agreement (Collegiate Pacific Inc)
Conditions to Initial Closing. The obligation obligations of the Lender to purchase and pay for the Tranche B Notes to be delivered on the initial Closing Date are subject to the prior or concurrent satisfaction of the following conditions:
(a) The Borrowers shall have duly authorized, executed and delivered to the Lender the Loan Agreement, the Notes, the Warrants, the Registration Rights Agreement and the other Transaction Documents and the documents and instruments to be delivered in connection therewith;
(b) There shall exist no Default or Event of Default and all the representations and warranties contained herein and in the other Transaction Documents shall be true and correct in all respects with the same effect as though such representations and warranties had been made on such Closing Date;
(c) The Lender shall have received, in form and substance satisfactory to the Lender, all releases, terminations and such other documents as the Lender may request to evidence and effectuate the termination by any outstanding secured creditor (other than the Existing Lenders) to the Borrowers of their respective financing arrangements with the Borrowers and the termination and release by it or them, as the case may be, of any interest in and to any assets and properties of the Borrowers and each Obligor, duly authorized, executed and delivered by it or each of them, including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party, and the Borrowers or any Obligor, as debtor; and (ii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by the Borrowers or any Obligor in favor of it, in form acceptable for recording with the appropriate Governmental Authority;
(d) All requisite corporate action and proceedings in connection with this Loan Agreement and the other Transaction Documents shall be satisfactory in form and substance to the Lender, and the Lender shall have received all information and copies of all documents, including records of requisite corporate action and proceedings which the Lender may have requested in connection therewith, such documents where requested by the Lender or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the articles of incorporation of Coachmen certified by the Secretary of State of Indiana);
(e) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that the Lender has a valid perfected security interest in all of the Collateral, of first priority except for Permitted Encumbrances, including without limitation;
(i) proper financing statements (Form UCC-1 or the equivalent) fully executed for filing under the UCC or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests purported to be created by the Transaction Documents;
(ii) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that Coachmen or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (i) above and in such other jurisdictions in which Collateral is located on the Closing Date, together with copies of such other financing statements that name Coachmen or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except to the extent evidencing Permitted Encumbraces);
(iii) evidence of the completion of all other recordings and filings of, or with respect to, the Transaction Documents as may be necessary or, in the reasonable opinion of the Lender, desirable, to perfect the security interests intended to be created by the Transaction Documents; and
(iv) evidence that all other actions necessary or, in the opinion of the Lender, desirable to perfect and protect the security interests purported to be created by the Transaction Documents have been taken.
(f) The Lender shall have received evidence of insurance and loss payee endorsements and assignments of insurance proceeds as required hereunder and under the other Transaction Documents, in form and substance satisfactory to the Lender, and certificates of insurance policies and/or endorsements naming the Lender as loss payee;
(g) The Lender shall have received, in form and substance satisfactory to the Lender, such opinion letters of counsel to the Borrowers with respect to the Transaction Documents and such other matters as the Lender may request, including, without limitation, an opinion addressed to the Lender from local counsel in Colorado, Indiana, Iowa, North Carolina, Tennessee and Virginia, covering such matters as the Lender may request including, but not limited to, the enforceability of each Mortgage to be filed for record in such states.
(h) The Lender shall have received the following financial statements and information (the “Financial Statements”): (i) an estimated unaudited pro forma consolidated balance sheet of Coachmen as of such Closing Date, prepared in accordance with GAAP after giving effect to all transactions contemplated hereby, which shall be in form and substance satisfactory to the Lender; (ii) the audited consolidated balance sheet of Coachmen and its consolidated subsidiaries as of December 31, 2008 and the related consolidated statements of income and retained earnings and the related consolidated statements of cash flows of Coachmen for the fiscal year then ended, together with the notes thereto; and (iii) the unaudited consolidated statements of income of Coachmen and its consolidated Subsidiaries for the eight months ending August 30, 2009. Since December 31, 2008, no Material Adverse Effect shall have occurred;
(i) The Lender shall have received an Officers Certificate of each Borrower, dated as of such Closing Date, certifying that (i) such Borrower is Solvent after giving effect to the consummation of the transactions contemplated hereby; (ii) the representations and warranties in Section 6 of this Loan Agreement are true, correct and complete on and as of the Closing Date; (iii) none of the Transaction Documents contains any untrue statement of a material fact or omits a material fact necessary to make the initial Loansstatements therein not misleading; (iv) the Borrower shall have performed all agreements and satisfied all conditions which this Loan Agreement and the other Transaction Documents provide shall be performed or satisfied by it on or before such Closing Date except as otherwise disclosed to and agreed to in writing by the Borrower Representative and the Lender; and (v) no Default or Event of Default shall have occurred and be continuing;
(j) On such Closing Date, the Lender’s purchase of Administrative Agent the Securities shall not be prohibited by any applicable law or governmental regulation and shall not subject it to any penalty or, in the Lender’s reasonable judgment, other onerous conditions under or pursuant to any applicable law or governmental regulation. The offering, issuance, and sale of the Securities shall have complied with all applicable requirements of Federal and state securities laws, and the Lender shall have received evidence of such compliance in form and substance satisfactory to the Lender;
(k) The Borrower Representative shall have executed and delivered to the Lender the Director Indemnification Agreement for the director nominees of the Lender in substantially the form of Exhibit 3.1(k) hereto and shall provide evidence that the Lender’s designees to Coachmen’s Board of Directors are covered by at least $25 million of D&O insurance; and
(l) Coachmen and the Subsidiaries named therein shall have duly authorized, executed and delivered a Pledge Agreement in the form of Exhibit 3.1(l) (as amended, modified or supplemented from time to time, the “Pledge Agreement”) and shall have delivered to the Lender all of the pledged securities, if any, referred to therein then owned by Coachmen and the Subsidiaries named therein, (i) endorsed in blank in the case of promissory notes and (ii) together with executed and undated stock powers in the case of Capital Stock.
(m) The Lender shall have received:
(i) a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt or leasehold deed to secure debt in substantially the form of Exhibit 3.1(m) (as amended, modified or supplemented from time to time, the “Mortgage”) with local law changes, duly executed, and corresponding UCC Fixture Filings, in form and substance satisfactory to the Lender, which Mortgage and UCC Fixture Filings shall cover each Real Property owned or leased by Coachmen or any of its Subsidiaries and designated as a “Mortgaged Property” on Schedule 3.1(m), together with evidence that counterparts of such Mortgage and UCC Fixture Filings have been delivered to the Title Company insuring the lien of such Mortgage for recording;
(ii) a lender’s title insurance policy (Form 1992) relating to each Mortgage of Real Property referred to above, other than Mortgages of Excluded Real Property, issued by a title insurer satisfactory to the Lender (the “Title Company”), in an insured amount satisfactory to the Lender and insuring the Lender that the Mortgage is a valid and enforceable first priority mortgage lien on such mortgaged property, free and clear of all defects and encumbrances except Permitted Encumbrances, with each such mortgage policy (1) to be in form and substance satisfactory to the Lender, (2) to include, to the extent available in the applicable jurisdiction, supplemental endorsements (including, without limitation, endorsements relating to, usury, first loss, last dollar, tax parcel, subdivision, zoning, contiguity, variable rate, doing business, public road access, survey, environmental lien, mortgage tax and so-called comprehensive coverage over covenants and restrictions and for any other matters that the Lender in its discretion may reasonably request), (3) to not include the “standard” title exceptions, a survey exception or an exception for mechanics’ liens, and (4) to provide for affirmative insurance and such reinsurance as the Lender in its discretion may reasonably request;
(iii) to induce the Title Company to issue any Support Agreements the mortgage policies referred to in subsection (ii) above, such affidavits, certificates, surveys, information and instruments of indemnification (including, without limitation, a so-called “gap” indemnification) as shall be required by the Title Company, together with payment by the Borrowers of all mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and issuance of such mortgage policies;
(iv) to the extent obtainable on or prior to the Closing Date and Date, fully executed landlord waivers and/or bailee agreements in respect of those leaseholds of Coachmen or any LC Issuer to issue any Lender Letter of Credit on the Closing Date its Subsidiaries, each of which landlord waivers and/or bailee agreements shall be subject to the receipt by Administrative Agent of each agreement, document and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee LetterLender;
(bv) to the extent requested by the Lender, copies of all leases in which Coachmen or any of its Subsidiaries holds the lessor’s interest or other agreements relating to possessory interests, if any; provided, that, to the extent any of the foregoing affect any Real Property subject to the Mortgages, to the extent requested by the Lender, such agreements shall be subordinate to the lien of the Mortgage to be recorded against such Real Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement (with any such agreement being reasonably acceptable to the Lender); and
(vi) flood certificates covering each Real Property in form and substance acceptable to the Lender, certified to the Lender and certifying whether or not such Real Property is located in a flood hazard area, as determined by designation of each such Real Property in a special flood hazard zone by reference to the applicable FEMA map.
(n) Coachmen and its Subsidiaries shall have duly authorized, executed and delivered to the Lender a Trademark Security Agreement in the form of Exhibit 3.1(n) (as amended, modified or supplemented from time to time, the “Trademark Security Agreement”).
(o) The Lender shall have received a Deposit Account Control Agreement in the form of Exhibit 3.1(o) (as amended, modified or supplemented from time to time, the “Deposit Account Control Agreement”), duly executed, with respect to all the deposit accounts set forth in the Perfection Certificate.
(p) Coachmen shall have amended the Shareholder Rights Agreement, in form and substance satisfactory to the Lender, which amendment shall exclude from the events triggering the right of any Person to purchase Common Stock or other securities thereunder both (i) the satisfaction transactions contemplated by this Loan Agreement (including without limitation the purchase of Agent the Notes and Warrants, the conversion of the Tranche B Notes and the exercise of the Warrants) and (ii) any Approved Purchase.
(q) Coachmen’s Board of Directors shall have approved an amendment to Coachmen’s by-laws providing that Chapter 42 of the Indiana Business Corporation Law, which relates to “control share acquisitions” (as defined therein), shall no longer apply to Coachmen, and the Lender shall have received, in form and substance satisfactory to the absenceLender, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected evidence that such amendment has become effective to result in a Material Adverse Effect;accomplish such purpose.
(cr) The Lender shall have received evidence, in form and substance satisfactory to the Lender, that (i) the receipt parties to the Change of Control Agreements shall have waived their rights under any of the initial Borrowing Base Certificate, prepared Change of Control Agreements as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation a result of the transactions contemplated by this Loan Agreement and (ii) Coachmen shall have issued warrants to purchase Common Stock in full satisfaction of its obligation to fund a rabbi trust to secure payment of amounts owed under its Executive Benefit and Estate Accumulation Plan as a result of the Operative Documents;change in control of Coachmen (after such funding, the Lender expects that Coachmen will fulfill all of its obligations thereunder).
(ds) MAny document required to be filed, registered, notarized or recorded in order to create and perfect the security interests purported to be granted in the Transaction Documents as first priority liens shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the sole discretion of the Lender to perfect such security interests as such first priority liens shall have been effected, and the Lender shall have received acknowledgment copies or other evidence satisfactory to it that all necessary filing, notarization, recording and other fees and taxes assessed by any Governmental Authority related to such filings, notarizations, registrations and recordings have been paid in full.
(t) The Lender shall have received a subordination agreement, executed by Lake City Bank and the State of Indiana, in form and substance satisfactory to the Lender.
(u) The Lender shall have received evidence that the Borrowers have obtained payoff letters from all the participants in the industrial revenue bonds owed to the R▇▇▇▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with Financing Authority and the results Franklin Development Authority providing for the removal of its legal all the liens securing such bonds and business due diligence, which, in the case letters of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) credit supporting them and other documentation (including, without limitation, title and survey documentation) with respect the return of the excess cash serving as collateral therefor to any owned or leased property, communications with management regarding financial performance and financial condition and bank accounts subject to a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;valid Deposit Account Control Agreement.
(ev) Administrative Agent The Borrowers shall have properly surrendered all of the life insurance policies that the Lender and the Lenders shall Borrower Representative have received and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated agreed will be surrendered for the cash surrender value thereof prior to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requestClosing Date.
Appears in 2 contracts
Sources: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries Inc)
Conditions to Initial Closing. The obligation of each Lender to make an Advance on the initial Loans, Closing Date is subject to the satisfaction of the conditions set forth in Section 3.02 and the following additional conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of a duly executed counterpart of this Agreement signed by such party;
(b) if requested by any Lender, receipt by the Administrative Agent of a duly executed Note for the account of each such Lender, complying with the provisions of Section 2.04;
(c) receipt by the Administrative Agent of an opinion of counsel to issue any Support Agreements the Loan Parties, dated as of the Closing Date (or in the case of an opinion delivered pursuant to Section 5.28 hereof such later date as specified by the Administrative Agent) in a form satisfactory to Administrative Agent and covering such matters set forth in Exhibit F hereto and such additional matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request;
(d) receipt by the Administrative Agent of a certificate (the “Closing Certificate”), dated the Closing Date, substantially in the form of Exhibit G hereto, signed by a chief financial officer or other authorized officer of each Loan Party, to the effect that, to his knowledge, (i) no Default has occurred and is continuing on the Closing Date and (ii) the representations and warranties of any LC Issuer to issue any Lender Letter the Loan Parties contained in Article IV are true on and as of Credit on the Closing Date shall be subject to the Date;
(e) receipt by the Administrative Agent of all documents which the Administrative Agent, the Multicurrency Agent or any Lender may reasonably request relating to the existence of each agreementLoan Party, document the authority for and instrument set forth on the Closing Checklistvalidity of this Agreement, each the Notes and the other Loan Documents, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent, including a certificate of incumbency of each Loan Party (the “Officer’s Certificate”), signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative of the respective Loan Party, substantially in the form of Exhibit H hereto, certifying as to the names, true signatures and incumbency of the officer or officers of the respective Loan Party, authorized to execute and deliver the Loan Documents, and certified copies of the following items: (i) the Loan Party’s Organizational Documents; (ii) the Loan Party’s Operating Documents; (iii) if applicable, a certificate of the Secretary of State of such Loan Party’s state of organization as to the good standing or existence of such Loan Party, and (iv) the Organizational Action, if any, taken by the board of directors of the Loan Party or the members, managers, trustees, partners or other applicable Persons authorizing the Loan Party’s execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Loan Party is a party;
(f) completion of due diligence to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of the Borrower and its Subsidiaries, including but not limited to review of the Investment Policies, risk management procedures, accounting policies, systems integrity, compliance, management and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent organizational structure and the Lenders shall have received loan and approved all requested financial statements investment portfolio of the Borrower and projections;
(f) intentionally omittedits Subsidiaries;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility Collateral Documents shall have been consummated in accordance with duly executed by the applicable Law Loan Parties and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith each such document shall have been obtained delivered to the Administrative Agent and each of the Collateral Documents and Custodial Agreement amended thereby, shall be in full force and effecteffect and each document (including each UCC financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Secured Parties, upon filing, recording or possession by the Administrative Agent, as the case may be, a valid, legal and final perfected first-priority security interest in and non-appealablelien on the Collateral described in the Collateral Documents, to the extent not previously received and/or filed, shall have been delivered to the Administrative Agent; Borrower shall also deliver or cause to be delivered, to the extent not previously delivered, the certificates (with undated stock powers executed in blank) for all shares of stock or other equity interests pledged to the Administrative Agent for the benefit of Lenders pursuant to the Pledge Agreement or such equity interests shall be held by the Collateral Custodian under the Custodial Agreement for the benefit of the Administrative Agent and the Secured Parties;
(kh) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Administrative Agent shall have received the satisfactory results of a search of the review UCC filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) in which the Loan Parties are organized, the chief executive office of each such Person is located, any offices of such persons in which records have been kept relating to Collateral described in the Collateral Documents and the other jurisdictions in which UCC filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens other than Permitted Encumbrances indicated in any such financing statement (or similar document) have been released or subordinated to the satisfaction of Administrative Agent;
(i) receipt by the Administrative Agent of a third party consultant engaged Borrowing Base Certification Report, dated as of the date of the initial Notice of Borrowing and satisfactory in all respects to the Administrative Agent;
(j) the Borrower shall have paid all fees required to be paid by it on the Closing Date, including all fees required hereunder and under the Joint Lead Arranger’s Letter Agreement, and shall have reimbursed the Administrative Agent to review and the adequacy Multicurrency Agent for all fees, costs and expenses of Borrowers’ closing the transactions contemplated hereunder and its Subsidiaries’ respective insurance coverageunder the other Loan Documents, including the reasonable legal, audit and other document preparation costs incurred by the Administrative Agent and the Multicurrency Agent; and
(nk) receipt by Agent of such other documentsdocuments or items as the Administrative Agent, instruments and/or agreements as Agent the Multicurrency Agent, the Lenders or their counsel may reasonably request. For purposes of determining compliance with the conditions specified in this Section 3.01, the Multicurrency Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from the Multicurrency Agent or such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Triangle Capital CORP), Credit Agreement (Triangle Capital CORP)
Conditions to Initial Closing. (i) The obligation of each Lender the Purchaser to make consummate the initial Loanstransactions contemplated hereby to be completed at the Initial Closing, including the purchase of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be Initial PIPE Shares, is subject to the receipt by Administrative Agent of each agreementfulfillment, document and instrument set forth prior to or on the Initial Closing ChecklistDate, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretionconditions:
1. The representations and warranties of the Company in Section 3(a) shall be true and correct in all material respects as of the date hereof and as of the Initial Closing Date as if made as of such date. The representations and warranties of the Company in Section 3(b), Section 3(d), Section 3(i) and Section 3(ee) shall be true and correct as of the date hereof and as of the Initial Closing Date as if made as of such date. The representations and warranties of the Company in Section 3(c) shall be true and correct, except for de minimis inaccuracies, as of the date hereof and as of the Initial Closing Date as if made as of such date (a) except for representations and warranties made as of a specified date, which shall be true and correct, except for de minimis inaccuracies, as of such specified date). All other representations and warranties of the payment of all fees, expenses Company in Section 3 shall be true and other amounts due and payable under each Financing Document, including, correct (without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent giving effect to any qualification as to the absence, since March 31, 2006, of any materiality or Material Adverse Effect contained therein) as of the date hereof and as of the Initial Closing Date as if made as of such date (except for representations and warranties made as of a specified date, which shall be true and correct as of such specified date), except where the failure of such representations and warranties to be true and correct (without giving effect to any qualification as to materiality or any event or condition which could reasonably be expected to result in Material Adverse Effect contained therein) would not have a Material Adverse Effect;
(c) 2. The Company shall have executed and delivered to the receipt Purchaser a duly executed copy of the initial Borrowing Base CertificateAmended and Restated Registration Rights Agreement; and
3. The Company shall have performed in all material respects all of its obligations hereunder required to be performed by it, prepared and complied with the covenants hereunder applicable to it in all material respects, at or prior to the Initial Closing.
(ii) The obligation of the Company to consummate the transactions contemplated hereby to be completed at the Initial Closing, including the issuance of the Initial PIPE Shares, is subject to the fulfillment, prior to or on the Initial Closing Date, of the following conditions:
1. The representations and warranties of the Purchaser in Section 4 shall be true and correct (without giving effect to any qualification as to materiality contained therein) as of the date hereof and as of Initial Closing DateDate as if made as of such date (except for representations and warranties made as of a specified date, which certificate shall evidence immediately available excess borrowing capacity be true and correct as of Revolving Loans such specified date), except where the failure of not less than $5,000,000 after such representations and warranties to be true and correct (without giving effect to the initial funding of Loans on the Closing Date and any qualification as to materiality contained therein) would not reasonably be expected to prevent, materially delay or materially impair the consummation of the transactions contemplated hereby; and
2. The Purchaser shall have performed in all material respects all of its obligations hereunder required to be performed by it, and complied with the Operative Documents;covenants hereunder applicable to it in all material respects, at or prior to the Initial Closing.
(diii) M▇▇▇▇▇▇ L▇▇▇▇ The obligations of each of the Company and the Purchaser to consummate the transactions contemplated hereby are subject to the fulfillment, prior to or on the Initial Closing Date, of the following conditions:
1. No judgment, injunction, decree or other legal restraint issued by a governmental entity shall be satisfied with prohibit, or have the results effect of its legal and business due diligencerendering unachievable, which, in the case consummation of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) the transactions contemplated hereby; and
2. A supplemental listing application with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) the authorization for listing on the New York Stock Exchange of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent and the Lenders shall have received and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility Initial PIPE Shares shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requestsubmitted.
Appears in 2 contracts
Sources: Purchase Agreement (Blue Apron Holdings, Inc.), Purchase Agreement (Sanberg Joseph N.)
Conditions to Initial Closing. (a) The obligation respective obligations of each Lender of the Investor and the Company to make consummate the initial Loans, of Administrative Agent to issue any Support Agreements on the Initial Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be are subject to the receipt fulfillment or written waiver by Administrative Agent of each agreement, document the Investor and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and Company prior to the satisfaction Initial Closing of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretionconditions:
(ai) the payment of all feesapprovals and authorizations of, expenses filings and other amounts due registrations with, and payable under each Financing Documentnotifications to, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, or expiration or termination of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) applicable waiting period, under the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ L▇▇▇▇ Antitrust Improvements Act of 1976 (the “HSR Act”) or competition or merger control laws of other jurisdictions (collectively, “Competition Approvals”), required to consummate the Initial Closing shall have been obtained or made and shall be satisfied with the results of its legal in full force and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operationseffect;
(eii) Administrative Agent no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the Lenders Initial Closing or shall have received prohibit or restrict the Investor from owning or voting any Securities (as defined below) and approved all requested financial statements no lawsuit has been commenced by a governmental or regulatory federal, state, local or foreign authority, agency, court, commission or other entity, including a stock exchange and projectionsother self-regulatory organization (collectively, “Governmental Entities”) seeking to effect any of the foregoing;
(f) intentionally omitted;
(giii) all other transactions contemplated insurance regulatory approvals required to occur in connection with consummate the closing of this loan and letter of credit facility Closing (the “Insurance Regulatory Approvals”) shall have been consummated obtained or made and shall be in accordance with applicable Law full force and effect, or the Investor and the documentation relating thereto, which Company shall be satisfactory have entered into mutually agreed alternative arrangements (such as the delivery of Securities into a voting trust) permitting the Initial Closing to Agent and the Lenders in form and substance;occur pending receipt of Insurance Regulatory Approvals; and
(hiv) Intentionally omitted;the Common Shares to be issued in the Initial Closing pursuant to this Agreement shall have been authorized for listing on the NYSE or such other market on which the Common Shares are then listed or quoted, subject to official notice of issuance.
(b) The obligation of the Investor to consummate the Initial Closing is also subject to the fulfillment or written waiver by the Investor prior to the Initial Closing of the following conditions:
(i) M▇▇▇▇▇▇ L▇▇▇▇ the representations and warranties of the Company set forth in this Agreement shall have been true and correct on the date of this Agreement and as of the Initial Closing Date, as though made on and as of the Initial Closing Date (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be satisfied that there has been no material adverse change true and correct as of such date), except where the failure to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein), individually or in the capital markets which could impair Maggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect (as defined below); and the Investor shall have received a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to such effect;
(ii) the Company shall have performed in all material respects all covenants, agreements and obligations required to be performed by it under this Agreement on or prior to the Initial Closing Date; and the Investor shall have received a certificate signed on behalf of the Company by the chief executive officer or the chief financial officer of the Company to such effect;
(iii) Mr. ▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effectirrevocably appointed, and final and non-appealable;effective immediately after the Company’s 2008 annual general meeting, as a director of the Company for a term expiring at the Company’s 2009 annual general meeting.
(kiv) Agent shall be satisfied the subsidiaries of the Company identified below having the following financial strength ratings, with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;a minimum of a stable outlook: Assured Guaranty Corp. Aaa AAA AAA Assured Guaranty Re Ltd. Aa2 AA AA
(lv) Intentionally omitted;
since the date of this Agreement, no “person” (mas that term is used in Section 13(d)(3) Agent of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”)) shall have received copies acquired, or announced its intention to acquire, “beneficial ownership” (as determined pursuant to Rule 13d-3 under the Exchange Act) of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results more than 50% of the review by Company’s Common Shares (determined on a third party consultant engaged by Agent to review the adequacy fully diluted basis) (a “Change of Borrowers’ and its Subsidiaries’ respective insurance coverageControl”); and
(nvi) receipt certification by Agent the Company’s Chief Executive Officer and Chief Financial Officer that since the Company’s most recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K there has not occurred a material adverse change in the credit quality of the Company’s insurance and reinsurance financial guarantee portfolio or investment portfolio.
(c) The obligation of the Company to consummate the Initial Closing is also subject to the fulfillment or written waiver by the Company prior to the Initial Closing of the following conditions:
(i) the representations and warranties of the Investor set forth in this Agreement shall have been true and correct on the date of this Agreement and as of the Initial Closing Date as though made on and as of the Initial Closing Date (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such other documentsdate), instruments and/or except where the failure to be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein), individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect; and the Company shall have received a certificate signed on behalf of the Investor to such effect; and
(ii) the Investor shall have performed in all material respects all covenants, agreements as Agent may reasonably requestand obligations required to be performed by it under this Agreement on or prior to the Initial Closing Date; and the Company shall have received a certificate signed on behalf of the Investor to such effect.
Appears in 1 contract
Conditions to Initial Closing. (i) The Company's obligation to complete the purchase and sale of each Lender to make the initial Loans, of Administrative Agent to issue any Support Agreements Initial Shares and the Initial Warrant on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Initial Closing Date shall be subject to the receipt by Administrative Agent of each agreement, document and instrument set forth accuracy on the Closing Checklistdate hereof, in all material respects, of the representations and warranties made by each Purchaser in form Section 6 hereof; and
(ii) Each Purchaser's obligation to accept delivery of the Initial Shares and substance reasonably satisfactory to Administrative Agentthe Initial Warrant, and to pay the satisfaction of Initial Purchase Price, allocated to such Purchaser pursuant to Section 1 hereof shall be subject to the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretionconditions:
(aA) the payment delivery of all fees, expenses the Initial Shares and other amounts due and payable under the Initial Warrant allocated to each Financing Document, including, without limitation, Purchaser pursuant to Section 1 hereof by the Administrative Agent Fee LetterCompany to such Purchaser as contemplated by Section 2(a) hereof;
(bB) the satisfaction accuracy on the Initial Closing Date of Agent the representations and warranties made by the Company in Section 5 hereof qualified as to materiality, the absenceaccuracy on the Initial Closing Date of the representations and warranties made by the Company in Section 5 hereof not qualified as to materiality, since March 31other than Section 5(j) hereof, 2006in all material respects, and the accuracy of any Material Adverse Effect or any event or condition which could reasonably be expected to result the representation on the Initial Closing Date of the representations and warranties made by the Company in a Material Adverse EffectSection 5(j) hereof;
(cC) the receipt approval of the initial Borrowing Base Certificatetransactions contemplated hereby by the Company's Board of Directors and the continuing effect of such approval;
(D) the delivery to each Purchaser of a certificate, prepared dated the Initial Closing Date and duly executed by a duly authorized officer of the Company, certifying, with respect to the Company, as to such approval and its continuing effect;
(E) the listing of the Purchased Shares and the shares of Common Stock issuable upon exercise of any of the Warrants upon the NYSE (or, as may be applicable, upon each national securities exchange or automated quotation system, if any, upon which shares of Common Stock are then listed) (subject to official notice of issuance upon exercise of a Warrant), all costs and expenses incurred in connection with such listing to have been paid by the Company;
(F) the delivery to each Purchaser of the registration rights agreement in the form of Exhibit B annexed hereto, dated the Initial Closing Date and duly executed by a duly authorized officer of the Company (the "Registration Rights Agreement"); and
(G) An opinion, dated the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent and the Lenders shall have received and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effectAttorneys LLP, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results form of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably request.Exhibit C.
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Rent Way Inc)
Conditions to Initial Closing. The In addition to the requirements of the conditions set forth in Section 3.1 above, the obligation of each Lender the Purchaser to make purchase the Notes at the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be is subject to the receipt by Administrative Agent fulfillment, to the Purchaser's satisfaction, at or concurrently with the initial Closing, of each agreement, document and instrument the conditions set forth on the Closing Checklist, each in form Section 3.3 below and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of all of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretionconditions:
(a) Copies of the payment Agreement of all feesLimited Partnership of the Company and of the charter and bylaws of the general partner of the Company, expenses and other amounts due and payable under each Financing Documentas in effect on the Closing Date, including, without limitation, certified by the Administrative Agent Fee Letter;Secretary of the general partner of the Company
(b) Resolutions of the satisfaction Company authorizing the execution and delivery of Agent as this Agreement, the Security Agreement and the other Purchase Documents to which it is a party and the absenceissuance and sale of the Notes, since March 31, 2006, certified by the Secretary of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effectthe general partner of the Company;
(c) the receipt Copies of the initial Borrowing Base Certificate, prepared Memorandum of Association and Bylaws of the Guarantor as of in effect on the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to certified by the initial funding of Loans on the Closing Date and the consummation Secretary of the transactions contemplated by the Operative DocumentsGuarantor;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with Resolutions of the results Board of its legal Directors of the Guarantor authorizing the execution and business due diligencedelivery of this Agreement, whichthe Guarantees and the other Purchase Documents to which it is a party, in certified by the case Secretary of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operationsthe Guarantor;
(e) Administrative Agent An original counterpart of this Agreement and the Lenders shall have received Security Agreement, each duly executed by the parties thereto and approved all requested financial statements and projectionsdated as of the initial Closing Date;
(f) intentionally omittedOfficial evidence that the Company has been duly formed and is an existing limited partnership in good standing under the laws of the State of California and that the Guarantor has been duly incorporated and is an existing corporation under the laws of the United Kingdom;
(g) all other transactions contemplated UCC-1 financing statements in a form approved by the Purchaser to occur in connection be filed with the closing Secretary of this loan and letter State of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substanceCalifornia;
(h) Intentionally omittedthe deposit by the Company of $750,000 in a money market account with IBJ Whitehall Bank & Trust Company, which account shall be in the name of the Company but subject to the exclusive control of the Purchaser;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change insurance certificate or certificates in respect of the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan Containers naming the Noteholders as loss payees and letter of credit facility;additional insureds; and
(j) a list of all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requestCompany's Containers.
Appears in 1 contract
Sources: Note Purchase Agreement (Cronos Global Income Fund Xvi Lp)
Conditions to Initial Closing. The obligation of each Lender to make the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be subject (a) Conditions to the receipt Obligations of Parent, Newco and the Investors. The obligations of Parent, Newco and the Investors to consummate the transactions contemplated by Administrative Agent of each agreement, document and instrument set forth on Section 1.1 at the Initial Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and are subject to the satisfaction of the following conditions precedentconditions: no ruling, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all feesorder, expenses and other amounts due and payable under each Financing Documentinjunction, includingdecree, without limitationstatute, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, rule or regulation of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate governmental authority shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and prevent the consummation of the transactions contemplated by hereby; provided, however, that the Operative Documents;parties shall use their reasonable best efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted.
(db) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with Conditions to the results Obligations of its legal and business due diligence, which, in the case Investors. The obligations of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect each Investor to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent and consummate the Lenders shall have received and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated by Section 1.1 at the Initial Closing are subject to occur in connection with the closing satisfaction or waiver, on or before the Initial Closing Date, of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;following additional conditions:
(i) M▇▇▇▇▇▇ L▇▇▇▇ Representations, Warranties and Covenants of Parent. The representations and warranties of Parent set forth in Section 4 of this Agreement shall be satisfied true and correct in all material respects as of the date when made and (unless made as of a specified date) as of the Initial Closing Date; provided, however, that there has been no if any of the representations and warranties are already qualified in any respect by materiality or as to Material Adverse Effect, such representation or warranty shall be true and correct as of such dates in all respects (i.e., as written); and Parent shall have performed, and shall have caused Newco to perform, in all material adverse change respects their respective covenants set forth in this Agreement to be performed prior to or at the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability Initial Closing; provided, however, that if any of the covenants are already qualified in any respect by materiality or as to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith Material Adverse Effect, such covenant shall have been obtained performed in all respects (i.e., as written); and neither Parent nor Newco shall be in full force and effecthave taken any action which would violate any provision of Newco's LLC Operating Agreement (as defined below) or this Agreement, as the case may be, and final at the Initial Closing Parent shall deliver to each Investor an officer's certificate, dated the Initial Closing Date and non-appealableduly executed by an executive officer, certifying as to Parent's compliance with the conditions set forth in this clause (i) and in clauses (ii), (viii), (xiii), (xiv), (xv) and (xviii);
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably request.
Appears in 1 contract
Sources: Investment Agreement (Motient Corp)
Conditions to Initial Closing. The obligation of each Lender to make the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date It shall be subject a condition to the receipt by Administrative Agent of each agreement, document and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by this Agreement at the Operative DocumentsInitial Closing that the Company shall have, concurrently with the execution of this Agreement by the Investors, executed and delivered:
(a) a copy of an agreement between The Travelers Insurance Company ("Travelers") and the Company that requires Travelers to convert its Convertible Promissory Note, dated August 21, 2001, into Common Stock upon the Company entering into this Agreement;
(b) a copy of an agreement between SK Corporation ("SK") and the Company that requires SK to convert its Series A Convertible Debentures, dated September 18, 2001, into Common Stock upon the Company entering into this Agreement;
(c) a copy of a settlement agreement between Finova Group Inc. and the Company that contains terms satisfactory to the Investors;
(d) Ma detailed plan regarding the restructuring of the Company's payables and outstanding debt, and copies of agreements between the Company and each of its creditors that requires each creditor to settle its claim with the Company upon the Company entering into this Agreement;
(e) a detailed chart of the Company's financial targets for the covenants in the New Notes, as set forth in Schedule 6(e) attached hereto;
(f) to the Collateral Agent (as defined in the New Security Agreement), the New Security Agreement and two completed originals of a UCC Form 1 suitable for filing and the applicable federal assignment forms executed by the Company sufficient for the Collateral Agent to perfect the security interests created therein with the United States Patent and Trademark Office;
(g) the Amended and Restated Notes, each such Amended and Restated Note to be in the amount required to be issued to each Original Secured Party on the date of the Initial Closing pursuant to Section 1(a); (h) the New Notes, each such New Note to be in the amount required to be issued to each New Investor on the date of the Initial Closing pursuant to Section 2(d);
(i) the Warrants, each such Warrant to be in the amount required to be issued to each Investor on the date of each Tranche Closing pursuant to Section 2(e);
(j) the Registration Rights Agreement, dated as of April 25, 2003, by and among the Company and the Investors (the "Registration Rights Agreement");
(k) to the Investors a legal opinion from the Company's outside legal counsel, dated as of April 25, 2003, in the form attached to this Agreement as Exhibit F;
(l) to the Collateral Agent in immediately available funds the amount of $7,500 as payment of the Collateral Agent's fee and for legal fees incurred by the Collateral Agent in connection with the negotiation of this Agreement and the New Security Agreement;
(m) to ▇▇▇▇▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇& ▇▇▇▇▇ L▇▇▇▇) LLP in immediately available funds the amount of Borrower $105,000, constituting as of the date of this Agreement $15,000 in reimbursable fees and Subsidiariesexpenses regarding filings with the Patent and Trademark Office and UCC filings under the Original Secured Note Purchase Agreement, Bridge Financing Agreement, Original Security Agreement, Bridge Security Agreements and Borrower’s New Security Agreement and Subsidiaries’ respective operations;
(e) Administrative Agent $90,000 in legal fees and expenses pursuant the this Agreement and the Lenders shall have received and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and shall be in full force and effect, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coveragerelated transactions; and
(n) receipt a certificate to the Investors signed by Agent the Company's Chief Executive Officer, certifying that (i) each of such other documentsthe representations and warranties in Section 4 are true and correct on and as of the Initial Closing date, instruments and/or agreements as Agent may reasonably requestand (ii) eMagin's and Virtual Vision's board of directors have approved this Agreement and the related transactions.
Appears in 1 contract
Conditions to Initial Closing. The obligation of each Lender to make an Advance on the initial Loans, Closing Date is subject to the satisfaction of the conditions set forth in Section 3.02 and the following additional conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of a duly executed counterpart of this Agreement signed by such party;
(b) if requested by any Lender, receipt by the Administrative Agent of a duly executed Note for the account of each such Lender, complying with the provisions of Section 2.04;
(c) receipt by the Administrative Agent of an opinion of counsel to issue any Support Agreements the Loan Parties, dated as of the Closing Date (or in the case of an opinion delivered pursuant to Section 5.28 hereof such later date as specified by the Administrative Agent) in a form satisfactory to Administrative Agent and covering such matters set forth in Exhibit F hereto and such additional matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request;
(d) receipt by the Administrative Agent of a certificate (the “Closing Certificate”), dated the Closing Date, substantially in the form of Exhibit G hereto, signed by a chief financial officer or other authorized officer of each Loan Party, to the effect that, to his knowledge, (i) no Default has occurred and is continuing on the Closing Date and (ii) the representations and warranties of any LC Issuer to issue any Lender Letter the Loan Parties contained in Article IV are true on and as of Credit on the Closing Date shall be subject to the Date;
(e) receipt by the Administrative Agent of all documents which the Administrative Agent, the Multicurrency Agent or any Lender may reasonably request relating to the existence of each agreementLoan Party, document the authority for and instrument set forth on the Closing Checklistvalidity of this Agreement, each the Notes and the other Loan Documents, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent, including a certificate of incumbency of each Loan Party (the “Officer's Certificate”), signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative of the respective Loan Party, substantially in the form of Exhibit H hereto, certifying as to the names, true signatures and incumbency of the officer or officers of the respective Loan Party, authorized to execute and deliver the Loan Documents, and certified copies of the following items: (i) the Loan Party's Organizational Documents; (ii) the Loan Party's Operating Documents; (iii) if applicable, a certificate of the Secretary of State of such Loan Party's state of organization as to the good standing or existence of such Loan Party, and (iv) the Organizational Action, if any, taken by the board of directors of the Loan Party or the members, managers, trustees, partners or other applicable Persons authorizing the Loan Party's execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Loan Party is a party;
(f) completion of due diligence to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of the Borrower and its Subsidiaries, including but not limited to review of the Investment Policies, risk management procedures, accounting policies, systems integrity, compliance, management and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent organizational structure and the Lenders shall have received loan and approved all requested financial statements investment portfolio of the Borrower and projections;
(f) intentionally omittedits Subsidiaries;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility Collateral Documents shall have been consummated in accordance with duly executed by the applicable Law Loan Parties and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith each such document shall have been obtained delivered to the Administrative Agent and each of the Collateral Documents and Custodial Agreement amended thereby, shall be in full force and effecteffect and each document (including each UCC financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Secured Parties, upon filing, recording or possession by the Administrative Agent, as the case may be, a valid, legal and final perfected first-priority security interest in and non-appealablelien on the Collateral described in the Collateral Documents, to the extent not previously received and/or filed, shall have been delivered to the Administrative Agent; Borrower shall also deliver or cause to be delivered, to the extent not previously delivered, the certificates (with undated stock powers executed in blank) for all shares of stock or other equity interests pledged to the Administrative Agent for the benefit of Lenders pursuant to the Pledge Agreement or such equity interests shall be held by the Collateral Custodian under the Custodial Agreement for the benefit of the Administrative Agent and the Secured Parties;
(kh) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Administrative Agent shall have received the satisfactory results of a search of the review UCC filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) in which the Loan Parties are organized, the chief executive office of each such Person is located, any offices of such persons in which records have been kept relating to Collateral described in the Collateral Documents and the other jurisdictions in which UCC filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens other than Permitted Encumbrances indicated in any such financing statement (or similar document) have been released or subordinated to the satisfaction of Administrative Agent;
(i) receipt by the Administrative Agent of a third party consultant engaged Borrowing Base Certification Report, dated as of the date of the initial Notice of Borrowing and satisfactory in all respects to the Administrative Agent;
(j) the Borrower shall have paid all fees required to be paid by it on the Closing Date, including all fees required hereunder and under the Administrative Agent's Letter Agreement or any letter agreement with the Multicurrency Agent to review be paid as of such date, and shall have reimbursed the adequacy Administrative Agent and the Multicurrency Agent for all fees, costs and expenses of Borrowers’ closing the transactions contemplated hereunder and its Subsidiaries’ respective insurance coverageunder the other Loan Documents, including the reasonable legal, audit and other document preparation costs incurred by the Administrative Agent and the Multicurrency Agent; and
(nk) receipt by Agent of such other documentsdocuments or items as the Administrative Agent, instruments and/or agreements as Agent the Multicurrency Agent, the Lenders or their counsel may reasonably request. For purposes of determining compliance with the conditions specified in this Section 3.01, the Multicurrency Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from the Multicurrency Agent or such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Initial Closing. The obligation Unless this Agreement is earlier terminated in accordance with Article VII, closing of the transactions set forth in Section 2.1(b) (the “Initial Closing”) shall take place on the second (2nd) Business Day following satisfaction or waiver (to the extent permitted by applicable law) of each Lender of the conditions set forth in this Section 2.1(a) (other than those conditions that by their nature are to make be satisfied at the initial LoansInitial Closing, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be but subject to the receipt fulfillment or waiver of those conditions), or such other date as agreed by Administrative Agent of each agreementthe Parties; provided, document and instrument set forth that the Parties agree that in no event shall the Initial Closing occur before January 3, 2022. The date on which the Initial Closing Checklist, each in form and substance reasonably satisfactory actually occurs is hereinafter referred to Administrative Agent, and to as the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the “Initial Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent and the Lenders shall have received and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;”.
(i) M▇▇▇▇▇▇ L▇▇▇▇ The Purchaser Board (A) shall have (1) approved and declared advisable this Agreement, the Ancillary Agreement, the Transactions and the Ancillary Transactions, including but not limited to the S-4/Proxy Statement and the filing thereof with the SEC, (2) determined that this Agreement and the Ancillary Agreements and the Transactions and the Ancillary Transactions are in the best interests of the Purchaser and its stockholders, and (3) resolved to recommend approval of this Agreement and the other Required Approval Matters by the Purchaser Common Stockholders, and (B) shall not have rejected, withdrawn or otherwise modified the approval, declaration and resolution referenced in the foregoing clause (A).
(ii) The Parties shall have agreed on the form of all documents and agreements and other matters which are required to be mutually agreed by the Parties prior to the Initial Closing as set forth in this Agreement;
(iii) The Seller shall have delivered Annex I and the Seller Disclosure Letter to Purchaser at least five (5) Business Days prior to the Initial Closing Date, but in no event prior to ten (10) Business Days after the Agreement Date.
(iv) The Purchaser shall have delivered the Purchaser Disclosure Letter to Seller at least five (5) Business Days prior to the Initial Closing Date, but in no event prior to ten (10) Business Days after the Agreement Date.
(v) The Purchaser shall have received each of the certificates, instruments, signature pages, and other items described under Section 2.1(c).
(vi) The Seller shall have received each of the certificates, instruments, signature pages, and other items described under Section 2.1(d).
(vii) The AP Assets shall be owned by the AiPharma Companies.
(viii) The Loan Documents shall be amended in accordance with Annex II hereto.
(ix) The Company’s outstanding equity interests shall be owned 100% by the Seller, and there shall be no options, warrants, subscriptions, puts, calls, exchangeable or convertible securities, or other similar rights, agreements, arrangements or commitments relating to the equity interests in the Company.
(x) Citing IRM Part 3.13.2.27.9 (01-01-2022), Request to Withdraw Classification Election, each of the Company and AiPharma Development shall have sent to the IRS, prior to December 31, 2021, a request (together, the “Requests”) to withdraw/rescind its respective Entity Classification Election. For the avoidance of doubt, (A) the Company and AiPharma Development shall have only sent the Requests, (B) none of the Seller, the Company or AiPharma Development represents, warrants, or covenants as to the effect of the Requests, and (C) the condition in this Section 2.1(a)(x) shall be satisfied that there has been no upon the sending of the Requests to the IRS, regardless of any response to, or consequences or implications of, the Requests.
(xi) The obligation of the Purchaser to consummate the Initial Closing is subject to the satisfaction, or the waiver by the Purchaser at its sole and absolute discretion, of all the following further conditions: (A) the Purchaser’s Board shall have received an opinion from its financial advisor, dated as of the date thereof, to the effect that, as of such date and based upon and subject to the factors, qualifications, assumptions, limitations and other matters set forth therein, the consideration to be paid by the Purchaser under this Agreement for the assets to be received by the Purchaser under this Agreement is fair, from a financial point of view, to the Purchaser’s stock holders; (B) the Seller shall have duly performed in all material adverse change respects its obligations under this Agreement required to be performed by it at or prior to the Initial Closing; (C) the Company shall have kept the Purchaser reasonably apprised with respect to the status of its negotiations with, and due diligence on, the Target, and shall have provided the Purchaser with copies of such documents and with such information regarding the Target as reasonably requested by the Purchaser; (D) the representations and warranties of the Seller set forth in the capital markets which could impair M▇first sentence of Section 3.1(a) (other than with respect to good standing) (Existence), Section 3.2 (Authorization), and Section 3.5 (AiPharma Companies) shall be true and correct in all respects as of the Initial Closing Date, as though made on and as of the Initial Closing Date (except that representations and warranties that speak as of a specified date or time shall have been true and correct only as of such date or time), and (ii) all other representations and warranties of the Seller contained in this Agreement and in any certificate delivered by the Seller pursuant hereto shall be true and correct as of the Initial Closing Date, as though made on and as of the Initial Closing Date (except that representations and warranties that speak as of a specified date or time shall have been true and correct only as of such date or time), except where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality” or “AiPharma ▇▇▇▇▇ ▇▇▇▇▇’▇▇▇ ability Adverse Effect”) would not reasonably be expected to successfully syndicate this loan have, individually or in the aggregate, an AiPharma ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Adverse Effect; (E) since the Agreement Date, no AiPharma ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Adverse Effect shall have occurred and letter of credit facility;be continuing; (F) all diligence items that the Purchaser has requested from the Company prior to the date hereof will have been delivered, in a form reasonably satisfactory, to the Purchaser; and (G) the Seller shall have delivered the AiPharma Financial Statements to the Purchaser.
(jxii) The obligations of the Seller to consummate the Initial Closing is subject to the satisfaction, or the waiver by the Seller at its sole and absolute discretion, of all governmental of the following further conditions: (A) the Purchaser shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Initial Closing Date; (B) the representations and third party approvals necessary warranties of the Purchaser set forth in connection the first sentence of Section 4.1(a) (other than with respect to good standing) (Existence) and Section 4.2 (Authorization) shall be true and correct in all respects as of the closing Initial Closing Date, as though made on and as of this loan the Initial Closing Date (except that representations and letter warranties that speak as of credit facility and the transactions contemplated to occur in connection therewith a specified date shall have been obtained true and correct only as of such date), (ii) the representations and warranties of the Purchaser set forth in Section 4.6 (Capitalization) shall be true and correct in full force all but de minimis respects as of the Initial Closing Date, as though made on and effectas of the Initial Closing Date (except that representations and warranties that speak as of a specified date shall have been true and correct only as of such date), and final (iii) all other representations and non-appealable;warranties of the Purchaser contained in this Agreement and in any certificate delivered by the Purchaser pursuant hereto shall be true and correct as of the Initial Closing Date, as though made on and as of the Initial Closing Date (except that representations and warranties that speak as of a specified date shall have been true and correct only as of such date), except where the failure of such representations and warranties to be so true and correct (without regard to qualification or exceptions contained therein as to “materiality” or “Purchaser Material Adverse Effect”) would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect; and (C) since the Agreement Date, no Purchaser Material Adverse Effect shall have occurred and be continuing.
(kxiii) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent No Authority of competent jurisdiction shall have received copies (A) enacted, issued or promulgated any currently effective Law that has the effect of making the Transactions illegal or which has the effect of prohibiting or otherwise preventing the consummation thereof, or (B) issued or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) granted any currently effective Order that satisfy has the insurance requirements included in effect of making the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received Transactions illegal or that has the satisfactory results effect of prohibiting or otherwise preventing the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requestconsummation thereof.
Appears in 1 contract
Conditions to Initial Closing. The obligation of each Lender to make an Advance on the initial Loans, Closing Date is subject to the satisfaction of the conditions set forth in Section 3.02 and the following additional conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of a duly executed counterpart of this Agreement signed by such party;
(b) if requested by any Lender, receipt by the Administrative Agent of a duly executed Revolver Note for the account of each such Lender, complying with the provisions of Section 2.04;
(c) receipt by the Administrative Agent of an opinion of counsel to issue any Support Agreements the Loan Parties, dated as of the Closing Date (or in the case of an opinion delivered pursuant to Section 5.28 hereof such later date as specified by the Administrative Agent) in a form satisfactory to Administrative Agent and covering such matters set forth in Exhibit F hereto and such additional matters relating to the transactions contemplated hereby as the Administrative Agent may reasonably request;
(d) receipt by the Administrative Agent of a certificate (the “Closing Certificate”), dated the Closing Date, substantially in the form of Exhibit G hereto, signed by a chief financial officer or other authorized officer of each Loan Party, to the effect that, to his knowledge, (i) no Default has occurred and is continuing on the Closing Date and (ii) the representations and warranties of any LC Issuer to issue any Lender Letter the Loan Parties contained in Article IV are true on and as of Credit on the Closing Date shall be subject to the Date;
(e) receipt by the Administrative Agent of all documents which the Administrative Agent or any Lender may reasonably request relating to the existence of each agreementLoan Party, document the authority for and instrument set forth on the Closing Checklistvalidity of this Agreement, each the Notes and the other Loan Documents, and any other matters relevant hereto, all in form and substance reasonably satisfactory to the Administrative Agent, including a certificate of incumbency of each Loan Party (the “Officer’s Certificate”), signed by the Secretary, an Assistant Secretary, a member, manager, partner, trustee or other authorized representative of the respective Loan Party, substantially in the form of Exhibit H hereto, certifying as to the names, true signatures and incumbency of the officer or officers of the respective Loan Party, authorized to execute and deliver the Loan Documents, and certified copies of the following items: (i) the Loan Party’s Organizational Documents; (ii) the Loan Party’s Operating Documents; (iii) if applicable, a certificate of the Secretary of State of such Loan Party’s state of organization as to the good standing or existence of such Loan Party, and (iv) the Organizational Action, if any, taken by the board of directors of the Loan Party or the members, managers, trustees, partners or other applicable Persons authorizing the Loan Party’s execution, delivery and performance of this Agreement, the Notes and the other Loan Documents to which the Loan Party is a party;
(f) completion of due diligence to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretion:
(a) the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, the Administrative Agent Fee Letter;
(b) the satisfaction of Agent as to the absence, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of the Borrower and its Subsidiaries, including but not limited to review of the Investment Policies, risk management procedures, accounting policies, systems integrity, compliance, management and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent organizational structure and the Lenders shall have received loan and approved all requested financial statements investment portfolio of the Borrower and projections;
(f) intentionally omittedits Subsidiaries;
(g) the Omnibus Amendment No. 1 to Collateral Documents and Custodial Agreement in form and content satisfactory to the Administrative Agent, which amendment shall provide, among other things for all other transactions contemplated references to occur the Credit Agreement in connection with the closing of existing Collateral Documents to be deemed to refer to this loan Amended and letter of credit facility Restated Credit Agreement, shall have been consummated in accordance with duly executed by the applicable Law Loan Parties and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith such document shall have been obtained delivered to the Administrative Agent and such amendment, along with each of the Collateral Documents and Custodial Agreement amended thereby, shall be in full force and effecteffect and each document (including each UCC financing statement) required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent for the benefit of the Secured Parties, upon filing, recording or possession by the Administrative Agent, as the case may be, a valid, legal and final perfected first-priority security interest in and non-appealablelien on the Collateral described in the Collateral Documents, to the extent not previously received and/or filed, shall have been delivered to the Administrative Agent; Borrower shall also deliver or cause to be delivered, to the extent not previously delivered, the certificates (with undated stock powers executed in blank) for all shares of stock or other equity interests pledged to the Administrative Agent for the benefit of Lenders pursuant to the Pledge Agreement or such equity interests shall be held by the Collateral Custodian under the Custodial Agreement for the benefit of the Administrative Agent and the Secured Parties;
(kh) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Administrative Agent shall have received the satisfactory results of a search of the review UCC filings (or equivalent filings) made with respect to the Loan Parties in the states (or other jurisdictions) in which the Loan Parties are organized, the chief executive office of each such Person is located, any offices of such persons in which records have been kept relating to Collateral described in the Collateral Documents and the other jurisdictions in which UCC filings (or equivalent filings) are to be made pursuant to the preceding paragraph, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence satisfactory to the Administrative Agent that the Liens other than Permitted Encumbrances indicated in any such financing statement (or similar document) have been released or subordinated to the satisfaction of Administrative Agent;
(i) receipt by the Administrative Agent of a third party consultant engaged Borrowing Base Certification Report, dated as of the date of the initial Notice of Borrowing and satisfactory in all respects to the Administrative Agent;
(j) the Borrower shall have paid all fees required to be paid by it on the Closing Date, including all fees required hereunder and under the Administrative Agent’s Letter Agreement to be paid as of such date, and shall have reimbursed the Administrative Agent to review for all fees, costs and expenses of closing the adequacy of Borrowers’ transactions contemplated hereunder and its Subsidiaries’ respective insurance coverageunder the other Loan Documents, including the reasonable legal, audit and other document preparation costs incurred by the Administrative Agent; and
(nk) receipt by Agent of such other documentsdocuments or items as the Administrative Agent, instruments and/or agreements as Agent the Lenders or their counsel may reasonably request. For purposes of determining compliance with the conditions specified in this Section 3.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Initial Closing. The obligation of each Lender EPIL to make effect the initial Loans, of Administrative Agent to issue any Support Agreements on the Initial Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be is subject to the receipt by Administrative Agent of each agreement, document and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretionunless waived by EPIL:
(ai) the payment representations and warranties of Incara and Aeolus contained in this Agreement and the Development Agreement shall be true and correct in all fees, expenses respects as of the date of such agreement and other amounts due as of the Initial Closing Date as if made on and payable under each Financing Document, including, without limitation, as of the Administrative Agent Fee LetterInitial Closing Date (except that such representations and warranties made as of a specified date shall be true and correct as of such date);
(bii) Incara and Aeolus shall have each performed and complied with all covenants and agreements required to be performed or complied with on or prior to the Initial Closing Date under (x) each Transaction Document and (y) the satisfaction Securities Purchase Agreement, dated as of Agent December 21, 2000 between Incara, EPIL and EIS (the "Prior Purchase Agreement") and each document entered into or delivered in connection with the Prior Purchase Agreement (collectively, the "Prior Purchase Documents"), as to the absencecase may be, since March 31, 2006, of and no material breach or default by Incara under any Material Adverse Effect Transactions Document or any event or condition which could reasonably Prior Purchase Document shall have occurred and be expected to result in a Material Adverse Effectcontinuing;
(ciii) Incara and/or Aeolus, as the receipt case may be, shall have made the closing deliveries set forth in Section 2(c)(i); and
(iv) all permits, consents, approvals, licenses, orders, authorizations, registrations, declarations, filings and other actions that are required in connection with the execution, delivery, filing and/or performance of each Transaction Document and the initial Borrowing Base Certificate, prepared as of certificates evidencing the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and Series B Preferred Stock or the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal hereby and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent and the Lenders shall have received and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith thereby shall have been obtained and shall be in full force and effect, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requesttaken.
Appears in 1 contract
Sources: Securities Purchase Agreement (Incara Pharmaceuticals Corp)
Conditions to Initial Closing. The obligation of each Lender EPIL to make ----------------------------- effect the initial Loans, of Administrative Agent to issue any Support Agreements on the Initial Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be is subject to the receipt by Administrative Agent of each agreement, document and instrument set forth on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and to the satisfaction of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretionunless waived by EPIL:
(ai) the payment representations and warranties of Incara and Aeolus contained in this Agreement and the Development Agreement shall be true and correct in all fees, expenses respects as of the date of such agreement and other amounts due as of the Initial Closing Date as if made on and payable under each Financing Document, including, without limitation, as of the Administrative Agent Fee LetterInitial Closing Date (except that such representations and warranties made as of a specified date shall be true and correct as of such date);
(bii) Incara and Aeolus shall have each performed and complied with all covenants and agreements required to be performed or complied with on or prior to the Initial Closing Date under (x) each Transaction Document and (y) the satisfaction Securities Purchase Agreement, dated as of Agent December 21, 2000 between Incara, EPIL and EIS (the "Prior ----- Purchase Agreement") and each document entered into or delivered in ------------------ connection with the Prior Purchase Agreement (collectively, the "Prior ----- Purchase Documents"), as to the absencecase may be, since March 31, 2006, of and no material breach or ------------------ default by Incara under any Material Adverse Effect Transactions Document or any event or condition which could reasonably Prior Purchase Document shall have occurred and be expected to result in a Material Adverse Effectcontinuing;
(ciii) Incara and/or Aeolus, as the receipt case may be, shall have made the closing deliveries set forth in Section 2(c)(i); and
(iv) all permits, consents, approvals, licenses, orders, authorizations, registrations, declarations, filings and other actions that are required in connection with the execution, delivery, filing and/or performance of each Transaction Document and the initial Borrowing Base Certificate, prepared as of certificates evidencing the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and Series B Preferred Stock or the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal hereby and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent and the Lenders shall have received and approved all requested financial statements and projections;
(f) intentionally omitted;
(g) all other transactions contemplated to occur in connection with the closing of this loan and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith thereby shall have been obtained and shall be in full force and effect, and final and non-appealable;
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent shall have received copies of (or binders for) insurance policies (including without limitation casualty, property, liability and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements satisfactory to Agent naming Agent as lender loss payee and additional insured, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requesttaken.
Appears in 1 contract
Sources: Securities Purchase Agreement (Incara Pharmaceuticals Corp)
Conditions to Initial Closing. The obligation Obligations of each Lender to make the initial Loans, of Administrative Agent to issue any Support Agreements on the Closing Date and of any LC Issuer to issue any Lender Letter of Credit on the Closing Date shall be Purchaser under this Agreement are subject to the receipt satisfaction (or waiver by Administrative Agent of each agreement, document and instrument set forth the Purchaser) on the Closing Checklist, each in form and substance reasonably satisfactory to Administrative Agent, and or prior to the satisfaction Initial Closing Date of the following conditions precedent, each to the satisfaction of Administrative Agent and Lenders in their reasonable discretionadditional conditions:
(a) All legal matters in connection with this Agreement and the payment of all fees, expenses and other amounts due and payable under each Financing Document, including, without limitation, transaction contemplated hereby shall be acceptable to the Administrative Agent Fee Letter;Purchaser in its sole discretion.
(b) the satisfaction of Agent as The Seller shall have obtained all necessary consents, approvals and permits from all federal and state regulatory agencies, governmental authorities and from any other Persons, in form and substance satisfactory to the absencePurchaser in its sole discretion, since March 31, 2006, of any Material Adverse Effect or any event or condition which could reasonably be expected to result in a Material Adverse Effect;
(c) the receipt of the initial Borrowing Base Certificate, prepared as of the Closing Date, which certificate shall evidence immediately available excess borrowing capacity of Revolving Loans of not less than $5,000,000 after giving effect to the initial funding of Loans on the Closing Date and the consummation of the transactions contemplated by the Operative Documents;
(d) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied with the results of its legal and business due diligence, which, in the case of business due diligence, shall include audits, appraisals, reports (including, without limitation, environmental reports) and other documentation (including, without limitation, title and survey documentation) with respect to any owned or leased property, communications with management regarding financial performance and financial condition and a field exam (in scope acceptable to M▇▇▇▇▇▇ L▇▇▇▇) of Borrower and Subsidiaries, and Borrower’s and Subsidiaries’ respective operations;
(e) Administrative Agent and the Lenders Purchaser shall have received copies of all such consents, approvals and approved all requested financial statements permits, and projections;
(f) intentionally omitted;
(g) all other transactions contemplated to occur in connection with the closing of this loan such consents, approvals and letter of credit facility shall have been consummated in accordance with applicable Law and the documentation relating thereto, which shall be satisfactory to Agent and the Lenders in form and substance;
(h) Intentionally omitted;
(i) M▇▇▇▇▇▇ L▇▇▇▇ shall be satisfied that there has been no material adverse change in the capital markets which could impair M▇▇▇▇▇▇ ▇▇▇▇▇’▇ ability to successfully syndicate this loan and letter of credit facility;
(j) all governmental and third party approvals necessary in connection with the closing of this loan and letter of credit facility and the transactions contemplated to occur in connection therewith shall have been obtained and permits shall be in full force and effecteffect on the Initial Closing Date, and final the Purchaser shall have received a certificate to that effect signed by the President or a Vice President of the Seller.
(c) The Seller shall have performed all agreements and non-appealablecovenants required by this Agreement and by the other Production Payment Documents to be performed by the Seller and all representations and warranties herein and in the other Production Payment Documents made by the Seller shall be true and correct as of the Initial Closing Date, and the Purchaser shall have received a certificate to that effect signed by the President or a Vice President of the Seller.
(d) The Seller shall have executed and delivered this Agreement, the Conveyance in substantially the form set forth in Exhibit B hereto together with letters in lieu of transfer orders addressed to each purchaser of any Production Payment Hydrocarbons, and all other Production Payment Documents, all in form and substance acceptable to the Purchaser in its sole discretion.
(e) The Purchaser shall have received an Indenture Release from the Senior Secured Trustee relating to the Subject Interests and related UCC-3 financing statement partial releases, in form and substance acceptable to the Purchaser in its sole and absolute discretion.
(f) The Purchaser shall have received approval of the transaction contemplated in this Agreement and the other Production Payment Documents from the Purchaser's senior management.
(g) The Purchaser shall have received, at Seller's expense, favorable opinions of counsel licensed to practice in each of the States in which the Subject Interests are located and which is satisfactory to the Purchaser, respectively, in form and substance satisfactory to the Purchaser in its sole discretion which:
(i) will deliver an opinion as to the matters set forth in Sections 3(a), 3(b), 3(c) and 3(d) hereof;
(ii) will express the author's opinion with respect to the sufficiency under the laws of such State of the form, execution, acknowledgment, recordability, validity and enforceability of the Conveyance and the other Production Payment Documents;
(iii) will state that the Seller has Defensible Title to those of the Subject Interests listed on Exhibit A hereto and located in such State, free of any liens, charges or encumbrances other than those described in Exhibit A to the Conveyance and that all filings and recordings necessary to perfect the Purchaser's title to the Subject Interests and to give constructive notice to third parties of the Purchaser's interest therein have been made;
(iv) will state that, under the laws of such State, upon execution and delivery of the Conveyance to the Purchaser, the Production Payment will have been validly created and will constitute a legal and valid interest in real property, enforceable in accordance with its terms; upon execution and delivery of the Conveyance to the Purchaser, the Production Payment will constitute a legal, valid and enforceable production payment dischargeable out of the volumes specified in the Conveyance of the production of Hydrocarbons accruing or attributable to the Subject Interests; upon execution and delivery of the Conveyance to the Purchaser, the covenants and agreements of the Seller contained in the Conveyance will be valid and enforceable in accordance with their terms and will inure to the benefit of the Purchaser as the owner of the Production Payment; in the event of the commencement of any bankruptcy reorganization, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency laws involving the Seller, the property interest and the production payments transferred by the Seller prior to any such commencement shall be excluded from the bankruptcy estate;
(v) will specify whether, under the laws of such State, any mortgage, documentary, stamp or other taxes will be payable in connection with the execution, delivery or recording of the Conveyance or any of the transactions contemplated thereby; will specify in which recording offices in such State the Conveyance should be recorded or filed in order to effect the transfer of the Production Payment to the Purchaser and that upon such filing or recording, the Purchaser will be the owner of such Production Payment, subject only to the matters permitted by the terms of the Conveyance;
(vi) will state that no consents, waivers, approvals or other action by any regulatory body of the respective State or of any third party are necessary in connection with the execution, delivery and performance by the Seller of this Agreement and the other Production Payment Documents or, if any such consent, waiver, approval or other action is necessary, that the same has been obtained or accomplished; and
(vii) will state that the consummation of this transaction and the delivery of this Agreement and the conveyance is permitted by, and does not violate, the terms of the Trust Indentures. which opinions may contain such qualifications or limitations as may be acceptable to the Purchaser.
(h) [Intentionally omitted].
(i) The Purchaser shall have received reserve reports and completed a Phase I environmental review satisfactory to the Purchaser, in its sole discretion, and, if requested by Purchaser, Purchaser shall have received a Phase II environmental report, relating to the Subject Interests, prepared by Carr Environmental Group, Inc., in form, substance, scope and methodology satisfactory to the Purchaser and, since the date of each report, there has been no material change in the information contained in each such report.
(j) No suit, action or other proceeding shall be pending to restrain, enjoin or otherwise prevent the consummation of this Agreement or the transactions contemplated in connection herewith or which may have any material affect on the Subject Interests.
(k) Agent shall be satisfied with Borrower’s and its Subsidiaries’ and SSG’s respective capital, legal and organizational structure;
(l) Intentionally omitted;
(m) Agent The Purchaser shall have received copies of (or binders for) insurance policies (including without limitation casualtybanking references and credit and other due diligence relating to the Seller and the Subject Interests, propertyin form, liability substance, scope and business interruption insurance) that satisfy the insurance requirements included in the Financing Documents, with certificates and endorsements methodology satisfactory to Agent naming Agent as lender loss payee and additional insuredthe Purchaser, and Agent shall have received the satisfactory results of the review by a third party consultant engaged by Agent to review the adequacy of Borrowers’ and in its Subsidiaries’ respective insurance coverage; and
(n) receipt by Agent of such other documents, instruments and/or agreements as Agent may reasonably requestsole discretion.
Appears in 1 contract