Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:
Appears in 3 contracts
Sources: Loan Agreement (Tucson Electric Power Co), Loan Agreement (Tucson Electric Power Co), Loan Agreement (Tucson Electric Power Co)
Conditions. The Company's interest obligations of Buyer to consummate the transactions provided for hereby are subject, in this Agreement the discretion of Buyer, to the satisfaction of each of the following conditions, on or prior to the Closing Date, any of which may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of waived by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition Buyer:
(a) the representations and warranties in Article III and Article IV shall relieve be true and correct when made and at and as of the Company from its primary liability for its obligations under Section 5.01 hereof or Closing Date as if such representations and warranties were made at such time (except that those representations and warranties which are made as of a specific date shall be true and correct only as of such date);
(b) shall be made unless the assigneeSeller, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, IHC and the Company shall have performed and satisfied in all material respects all agreements and covenants required hereby to be released performed or satisfied by them prior to or at the Closing Date;
(c) all Consents from any Person, including without limitation those set forth on Schedule 3.7(b), and all filings, registrations and notifications necessary to permit the consummation of the transactions contemplated by this Agreement and discharged from such obligations the Ancillary Agreements shall have been obtained or made with no material adverse conditions being imposed;
(d) no Person that is not a party to this Agreement (or an Affiliate thereof) shall have obtained a Court Order which makes the extent so assumed. Notwithstanding transactions contemplated by this Agreement or the foregoingAncillary Agreements illegal or otherwise prohibited;
(e) there shall not have occurred any event, change or condition that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect;
(af) if the Company shall have capital and surplus of no less than $21,300,000 under GAAP;
(g) First Standard shall have entered into the Reinsurance Treaties as described in Section 6.13;
(h) Buyer and its Affiliates and Seller and its Affiliates, as applicable, shall have entered into a service agreement or agreements in form and substance reasonably satisfactory to each of Buyer and Seller;
(i) The holders (other than IHC and its Affiliates) of a majority of the Company's interest shares of common stock of Buyer present in this Agreement shall be assigned as a whole person or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof by proxy at the option Buyer's Stockholders Meeting shall have approved the transactions contemplated by this Agreement;
(j) The Company shall own directly all of the Company outstanding shares of capital stock of RAS and RAS shall extend beyond the maturity date own directly all of the Bonds or outstanding shares of capital stock of First Standard Associates Corp.; and
(iiik) the Company's interest in the Facilities shall be soldSeller, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other dispositionIHC, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); providedits Subsidiaries, howeveras applicable, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to delivered the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed documents required to be part of the Facilities for the purposes of this Agreement delivered by delivering to the Authority and the Trustee the agreements or other documents required them pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit9.1(a), or interest therein, shall no longer be deemed in form and content reasonably satisfactory to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Buyer.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Independence Holding Co), Stock Purchase Agreement (Softnet Systems Inc), Stock Purchase Agreement (Madison Investors Corp)
Conditions. The Company's ’s interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's ’s interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's ’s interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's ’s interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:
Appears in 3 contracts
Sources: Loan Agreement (Unisource Energy Corp), Loan Agreement (Tucson Electric Power Co), Loan Agreement (Unisource Energy Corp)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), Backstop Parties’ obligations to purchase any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form securities pursuant to the Trustee and Basic Commitment and/or the Authority, all other obligations of the Company hereunder Backstop Commitment are subject to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following conditions: (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, execution and delivery of mutually satisfactory definitive documentation among BFE Corp. and the Backstop Parties which incorporates the terms set forth herein (the “Definitive Agreements”); (ii) the Company's interest satisfaction or waiver by the Backstop Parties of the conditions to the Backstop Parties’ obligations to consummate the transactions contemplated by the Definitive Agreements as may be agreed upon in the Facilities Definitive Documents; (iii) BFE Corp. shall be leased in compliance with its obligations under the Loan Agreement and all other transaction documents relating to the Bridge Loan in all material respects; (iv) there has not occurred any material adverse change, or any development involving a prospective material adverse change, since the date hereof in the condition, financial or otherwise, or in the earnings, business, operations or properties of BFE Corp. and its subsidiaries, taken as a whole or in undivided part and (a “Material Adverse Change”); (v) there not having occurred after the term of such leasehold or date hereof at any time prior to the term of any extension or extensions thereof at the option funding of the Company shall extend beyond Basic Commitment and/or the maturity date of the Bonds Backstop Commitment any material disruption or (iii) the Company's interest material adverse change in the Facilities shall be soldfinancial, transferred banking or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating capital markets that, in the opinion commercially reasonable judgment of such Independent Expertthe Backstop Parties, would have a material adverse impact on the Fair Value success of the Rights Offering; (vi) all required approvals and consents shall have been obtained; (vii) all representations and warranties made by BFE Corp. in this Letter Agreement being true and correct in all material respects; (viii) BFE Corp. shall be in compliance with all covenants and other provisions of this Letter Agreement in all material respects; (ix) the Cargill Acknowledgement Letter (as hereinafter defineddefined below) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of being in full force and effect; (x) the aggregate principal amount each of the Bonds then Outstanding Executive Management Waiver Agreements (as defined in the Loan Agreement) being in full force and effect; (xi) no actions, suits or proceedings shall be pending or threatened that challenge any Definitive Agreement, this Letter Agreement, the Loan Agreement, the Cargill Acknowledgement Letter or any related agreement; (xii) the Backstop Parties having been reasonably satisfied with (A) the Certificate of Designations setting forth the rights and preferences of the Series A Non-Voting Convertible Preferred Stock that reflects the terms set forth on Exhibit A hereto and other customary terms and provisions as determined by Greenlight in its reasonable discretion and (yB) the outstanding principal amount of all other obligations amended and restated limited liability company agreement of the Company representing indebtedness for borrowed money or for LLC setting forth the deferred purchase price rights and preferences of property which are being assumed by such Person; providedthe Preferred Membership Interests and, further, that after any such assumption, release and discharge as aforesaidif applicable, the Company may again assume such obligations under Class B Preferred Membership Interests, and other customary terms and provisions as determined by Greenlight in its reasonable discretion; (xiii) the receipt by the Backstop Parties of a legal opinion from Cravath, Swaine & ▇▇▇▇▇ LLP with respect to customary matters in a form satisfactory to Greenlight in its reasonable discretion; (xiv) BFE Corp. shall not have entered into any letter of intent, memorandum of understanding, agreement in principle or other agreement relating to any competing plan, proposal, offer or transaction with a third party other than Greenlight materially inconsistent with this Letter Agreement; and (xv) the Board of Directors of BFE Corp. shall have adopted Section 5.01 hereof, in whole or in part, at any time and from time to time, and, 16b-3 Resolutions related to the extent issuance to the Backstop Parties of Series A Non-Voting Convertible Preferred Stock, Preferred Membership Interests, Class B Preferred Membership Interests, Common Stock and warrants and the allocation among the Greenlight Parties, of the Backstop Commitment and any such assumption by the Company (but only to such extent)purchase of Class B Preferred Membership Interests, the aforesaid assignee, lessee, purchaser or other transferee form of which shall be released from and discharged of all liability satisfactory to Greenlight in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:sole discretion.
Appears in 3 contracts
Sources: Rights Offering Letter Agreement (Greenlight Capital LLC), Rights Offering Letter Agreement (BioFuel Energy Corp.), Rights Offering Letter Agreement (BioFuel Energy Corp.)
Conditions. The Company's interest Notwithstanding anything in this Award Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by Plan to the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition contrary: (a) shall relieve the Company from its primary liability may, if it shall determine it necessary or desirable for its obligations under Section 5.01 any reason, at the time of grant of the Option or the issuance of any Shares pursuant to the Option, require Grantee, as a condition to the receipt hereof or to the receipt of Shares issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Option or the Shares issued pursuant thereto for his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of the Option or the Shares issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with the award of the Option, the issuance of Shares pursuant thereto or the removal of any restrictions imposed on such Shares, the Option shall not be made unless the assignee, lessee, purchaser granted or other transfereesuch Shares shall not be issued or such restrictions shall not be removed, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any time conditions not acceptable to the Company. Notwithstanding any other provision of the Plan, this Award Agreement or any other agreements entered into pursuant to the Plan, the Company will not be required to issue any Shares under this Award Agreement or the Plan, and Grantee may not sell, assign, transfer or otherwise dispose of Shares issued pursuant to the Award granted under the Plan, unless (a) there is in effect with respect to such Shares a registration statement under the Securities Act, and any applicable state or foreign securities laws or an exemption from time such registration under the Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other regulatory body which the Committee, in its sole discretion, deems necessary or advisable. The Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing Shares, as may be deemed necessary or advisable by the Company in order to time, and, comply with such securities law or other restrictions. The Committee may restrict the rights of Grantee to the extent necessary to comply with Section 16(b) of the Exchange Act, the Code or any such assumption by other applicable law or regulation. The grant of the Option pursuant to this Award Agreement and the Plan shall not limit in any way the right or power of the Company (but only to such extent)make adjustments, the aforesaid assigneereclassifications, lesseereorganizations or changes of its capital or business structure or to merge, purchaser exchange or other transferee shall be released from and discharged of consolidate or to dissolve, liquidate, sell or transfer all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements its business or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:assets.
Appears in 3 contracts
Sources: Executive Employment Agreement (CorMedix Inc.), Executive Employment Agreement (CorMedix Inc.), Executive Employment Agreement (CorMedix Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve The obligation of the Company from its primary liability for its obligations under Section 5.01 hereof or (b) Investor to consummate the Closing shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form subject to the Trustee condition that all representations and the Authority, all warranties and other obligations statements of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released true and correct as of the date of this Agreement and discharged from the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date), except for such failures to be so true and correct (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein) as would not have, individually in the aggregate, a Material Adverse Effect; the condition that the Company shall have performed in all material respects all of its obligations hereunder theretofore to be performed (without giving effect to any qualification as to materiality or Material Adverse Effect contained therein); and the condition that since the date hereof no Material Adverse Effect shall have occurred and be continuing with respect to either (x) the Company or (y) the Company after giving effect to the extent so assumed. Notwithstanding transactions contemplated by the foregoingBranch Purchase Agreement.
(b) The obligation of the Company to consummate the Closing shall be subject to the condition that all representations and warranties and other statements of the Investor shall be true and correct as of the date of this Agreement and the date of the Closing (except those representations and warranties that by their terms speak specifically as of the date of this Agreement or some other date shall be true and correct as of such date); and the condition that the Investor shall have performed all of its obligations hereunder theretofore to be performed.
(c) The obligation of each of the Investor and the Company to consummate the Closing shall be subject to the following additional conditions:
(1) no provision of any applicable law or regulation and no judgment, injunction, order or decree shall prohibit the transactions contemplated hereby or prohibit the Investor from owning or voting any of the Investor Shares;
(a2) if the purchase by the Investor of the Investor Shares shall not (i) require the Company's interest Investor or any of its affiliates to file a prior notice under the Change in this Agreement shall be assigned as a whole Bank Control Act, or in undivided part, otherwise seek prior approval or non-objection of any state or federal banking regulator; (ii) require the Company's interest in the Facilities shall be leased as Investor or any of its affiliates to become a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds bank holding company; or (iii) cause the Company's interest in the Facilities shall be soldInvestor, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or together with any other transferee shall assume the obligations person whose securities of the Company under Section 5.01 hereof for would be aggregated with the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge Investor’s securities of the Company pursuant for purposes of any bank regulation or law, to clause collectively be deemed to own, control or have the power to vote securities which (b) shall be conditioned upon the delivery assuming, for this purpose only, full conversion and/or exercise of such securities by the Company to the Authority Investor and the Trustee such other persons) would represent more than 9.9% of a certificate any class of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations voting securities of the Company representing indebtedness for borrowed money or for outstanding on the deferred purchase price date of property which are being assumed by such Person; provided, further, that the Closing (after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, giving effect to the extent purchase of any such assumption by the Company Investor Shares contemplated hereby); and
(but only 3) the conditions set forth in Section 10 of the Branch Purchase Agreement, other than the condition set forth in Section 10.3(e) of the Branch Purchase Agreement with respect to such extentthe Company’s acceptance of the proceeds of the Acceptable Financing (as defined in the Branch Purchase Agreement), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease been satisfied or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:waived.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Banc of California, Inc.), Securities Purchase Agreement (Banc of California, Inc.), Securities Purchase Agreement (Banc of California, Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The Company, on its own initiative, shall relieve not change the Company from its primary liability terms and conditions of any LBL Contract, other than for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior any changes that are required due to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest changes in this Agreement shall be assigned as a whole or in undivided partApplicable Law, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option terms of the Company shall extend beyond the maturity date of the Bonds LBL Contracts or (iii) the requirements of any Governmental Entity. If the Company's interest ’s liability under any of the LBL Contracts is changed because of changes made on or after the Inception Date in the Facilities shall be soldterms and conditions of the LBL Contracts (including to any contract riders or endorsements thereto) that are required due to the reasons identified in clauses (i), transferred (ii) or otherwise disposed of as a whole or in undivided part(iii) above, and (b) the Reinsurer will share in the event that change proportionately to the assignee, lessee, purchaser or other transferee shall assume the obligations of coinsurance share hereunder and the Company and the Reinsurer will make all appropriate adjustments to amounts due each other under Section 5.01 hereof for the remaining term of this Agreement. With respect to any change required due to the reasons identified in clauses (i) or (iii) above, the Company shall, to the extent practicable, prior to the effectiveness of any such change, promptly notify the Reinsurer of such assignment, lease, sale, transfer or other disposition, proposed change and afford the Company shall be released from and discharged of all liability in respect of such obligations to Reinsurer the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, andopportunity, to the extent practicable, to object to such change under applicable administrative procedures (both formal and informal).
(b) Except as otherwise set forth or contemplated herein, including in paragraph (a) above, no changes, amendments or modifications made on or after the Inception Date of the terms and conditions of the LBL Contracts (including to any such assumption contract riders or endorsements thereto) shall be covered hereunder unless made by the Reinsurer pursuant to the Administrative Services Agreement or made or consented to by the Company (but only with the prior written approval of the Reinsurer. In the event that any such changes, amendments or modifications are made or consented to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, any LBL Contract by the Company shall not make any assignment, lease or sale as provided in without the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act prior written approval of the Bonds and Reinsurer, this Agreement will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, cover Reinsured Risks incurred by the Company mayunder such LBL Contract as if the non-approved changes, at its option, cause such element amendments or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:modifications had not been made.
Appears in 3 contracts
Sources: Reinsurance Agreement, Reinsurance Agreement (Allstate Corp), Stock Purchase Agreement (Allstate Corp)
Conditions. The Company's interest in A. In addition to Purchaser’s absolute right to terminate this Agreement Contract for any reason at any time during the Review Period, the obligation of Purchaser under this Contract to purchase the Property from Seller is subject to the satisfaction of each of the following conditions on or prior to the Closing Date, any of which conditions may be assigned as a whole or waived in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (by Purchaser by written waiver at or prior to the Closing Date:
1. Title to the Real Property shall be good and marketable as required herein, free and clear of all liens and encumbrances and subject to no exceptions other than the Permitted Exceptions and the Escrow Agent shall be prepared to issue an owner’s title insurance policy pursuant to the Title Commitment insuring the title to the Real Property subject only to the Permitted Exceptions in the amount of the Purchase Price. For purposes of determining whether an interest in a specific element or unit or an undivided interest)this Condition has been satisfied, to any Person; provided, however, it shall be assumed that no such assignment, lease, sale, transfer or other disposition as of the Closing Date: (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery all of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest Purchaser’s “Requirements” set forth in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, Title Commitment have been satisfied; and (b) the Escrow Agent’s willingness to issue such owner’s title insurance policy shall satisfy the requirement that title to the Real Property shall be good and marketable.
2. Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Contract to be performed by, observed and complied with on its part either on or prior to the Closing Date.
3. All of Seller’s representations and warranties contained herein shall be true and correct in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations all material respects as of the Company under Section 5.01 hereof for the remaining term of this Agreement, Closing Date and Seller will deliver to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations Purchaser at Closing a certificate to the extent so assumed (but only to such extent); provided, however, that the release and discharge effect.
4. The physical condition of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company Property shall not make any assignment, lease or sale as provided in have materially changed since the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Effective Date.
Appears in 3 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement, Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions. The Company's interest in As a material inducement for the Purchaser to enter into this Agreement may be assigned as a whole or in partAgreement, Seller hereby makes the following acknowledgments and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition representations:
(a) shall relieve That, it owns the Company from its primary liability for its obligations under Section 5.01 hereof or tradenames to the Products described herein.
(b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by The execution and delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms of the Agreement will not result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, other agreement or instrument to which the Seller is a party or by which it or its assets are bound; or to the extent best of such assignmentSeller's knowledge, leaseany applicable regulation, salejudgment, transfer order or other dispositiondecree of any governmental instrumentality or court, domestic or foreign, having jurisdiction over the Company shall be released from and discharged of all liability Seller or its properties;
(c) There are presently no contingent liabilities, factual circumstances, threatened or pending litigation, contractually assumed obligations or unasserted possible claims which might result in a material adverse change with respect of such obligations to the extent so assumed premises being purchased herein;
(but only to such extent); providedd) The execution, however, that the release delivery and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes performance of this Agreement and the transactions contemplated hereby do not require the consent, authority or approval of any other person or entity except such as have been obtained;
(e) To the best of Sellers knowledge and belief no transactions have been entered into either by delivering or on behalf of the Seller, other than in the ordinary course of business nor have any acts been performed which would adversely affect goodwill with respect to the Authority premises being purchased herein;
(f) The entering into of this Agreement and the Trustee performance thereof has been duly and validly authorized by all required corporate action, and does not require any consents, corporate, governmental or otherwise, other than such as have been unconditionally obtained;
(g) The trademark/tradename, documentation, a copy of which is annexed hereto and made a part hereof as Exhibit A accurately reflects the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part current ownership and registration of the Facilities for Seller and no additional information is required in order to render the purposes information so provided not misleading;
(h) As of the date of the execution of this Agreement. For purposes written Agreement no events have occurred nor have any facts been discovered which materially alter in detrimental manner the trademarks of this Section 7.01:the Seller;
(i) The foregoing representations and warranties do not contain any untrue statements nor do they fail to disclose information necessary in order to render the information provided not misleading;
(j) The foregoing representations and warranties shall also be true, complete and accurate on and as of the Closing Date, as if initially provided on such date, the Seller hereby covenanting and agreeing to do all things required therefore (including within such obligation the abstinence from any actions, the performance of which would render any of the foregoing representations and warranties inaccurate, as of the Closing Date);
Appears in 2 contracts
Sources: License Agreement (Hispanica International Delights of America, Inc.), License Agreement (Hispanica International Delights of America, Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from Each Backstop Purchaser’s obligation to purchase shares of Class A Common Stock pursuant to its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form Backstop Commitment is subject to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and following conditions: (i) the Company shall be released of and discharged from such in compliance with its obligations to the extent so assumed. Notwithstanding the foregoing, under this Agreement in all material respects; (a) if (iii) the Company's interest representations and warranties of the Company set forth in this Agreement shall be assigned true and correct as a whole of the date of this Agreement and the Closing and the failure of any such representations and warranties to be so true and correct has not resulted in, and would not reasonably be expected to result in, individually or in undivided partthe aggregate, a Company Material Adverse Effect; and (iii) to the extent required by the rules of Nasdaq, the Company shall have obtained the Stockholder Approval.
(b) The Company’s obligations hereunder are subject to the following conditions: (i) the Backstop Purchasers shall be in compliance with their respective obligations under this Agreement in all material respects; (ii) the Company's interest representations and warranties of the Backstop Purchasers hereunder shall be true and correct as of the date of this Agreement and the Closing and the failure of any such representations and warranties to be so true and correct has not resulted in, and would not reasonably be expected to result in, individually or in the Facilities shall be leased as aggregate, a whole or in undivided part material adverse effect on the ability of the Backstop Purchasers to consummate the transactions contemplated by this Agreement; and (iii) to the term extent required by the rules of such leasehold or the term of any extension or extensions thereof at the option of Nasdaq, the Company shall extend beyond have obtained the maturity date Stockholder Approval.
(c) The Closing is further subject to the satisfaction or waiver of the Bonds or following conditions: (i) consummation of the Rights Offering and delivery of the Subscription Notice to the Backstop Purchasers; (ii) to the extent required by the rules of Nasdaq, stockholder approval of this Agreement and the issuance of the Backstop Acquired Shares in compliance with Nasdaq Rule 5635 (the “Stockholder Approval”); and (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations consummation of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Exchange Transactions.
Appears in 2 contracts
Sources: Exchange Agreement (Rent the Runway, Inc.), Rights Offering Backstop Agreement (Rent the Runway, Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligations of Sellers and Purchaser to consummate the transactions contemplated by this Agreement shall relieve be subject to the Company from satisfaction or waiver, on or before the Closing Date, of the following conditions:
(i) All waiting periods (and any extension thereof) under laws applicable to the transactions contemplated by this Agreement shall have expired or been earlier terminated.
(ii) There shall be no injunction, restraining order or decree of any nature of any court or governmental authority that is in effect that restrains or prohibits the consummation of the transactions contemplated by this Agreement or imposes conditions on such consummation not otherwise provided for herein.
(iii) Neither Purchaser nor any Seller shall have been advised by any United States federal government agency (which advisory has not been officially withdrawn on or prior to the Closing Date) that such government agency is investigating the transactions contemplated by this Agreement to determine whether to file or commence any litigation that seeks or would seek to enjoin, restrain or prohibit the consummation of the transactions contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, either Forestar Petroleum, Forestar (USA) or Purchaser will have the right, exercisable at its primary liability for its sole election, to terminate this Agreement by delivering written notice to the other Parties before the Closing, whereupon Escrow Agent will return the ▇▇▇▇▇▇▇ Money to Purchaser, and the Parties will have no further rights or obligations under Section 5.01 hereof or hereunder (except as otherwise expressly provided herein).
(b) shall be Unless waived by Purchaser, in addition to any other conditions set forth in this Agreement, the obligations of Purchaser under this Agreement are expressly made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form subject to the Trustee and the Authority, fulfillment in all other obligations respects of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following conditions precedent:
(i) the Company's interest truth and accuracy as of the Closing Date, in this Agreement shall be assigned as a whole or in undivided partall material respects, of each and every warranty and representation herein made by any Seller;
(ii) the Company's interest Each Seller’s timely performance of and compliance with, in the Facilities shall all material respects, each and every term, condition, agreement, restriction and obligation to be leased as a whole or in undivided part performed and the term of complied with by such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or Seller under this Agreement;
(iii) The aggregate acreage of all Title Objection Property, Title Failure Property and Environmental Property shall not exceed twenty percent (20%) of the Company's interest acreage of the Timberlands;
(iv) Purchaser’s receipt of a binding commitment from the Title Company to issue a title insurance policy insuring Purchaser’s title to the Property following the Closing, subject only to the Permitted Encumbrances; and
(v) Sellers’ obtaining of all corporate approvals, consents and authorizations as may be required for Sellers to consummate the transaction contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 15(b). Notwithstanding the Facilities shall be soldforegoing sentence, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that of either Seller’s failure to fulfill any condition precedent set forth in Section 14(b)(ii), Purchaser shall provide written notice to such Seller and such Seller shall have seven (7) days from receipt of such notice to fulfill the assigneecondition precedent before Purchaser may exercise any remedies described in Section 15(b).
(c) Unless waived by a Seller, lessee, purchaser or other transferee shall assume the obligations of such Seller under this Agreement are expressly made subject to the Company fulfillment in all respects of the following conditions precedent:
(i) the truth and accuracy as of the Closing Date, in all material respects, of each and every warranty and representation herein made by Purchaser; and
(ii) Purchaser’s timely performance of and compliance with, in all material respects, each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser under Section 5.01 hereof for the remaining term of this Agreement.
(iii) The aggregate acreage of all Title Objection Property shall not exceed ten percent (10%) of the acreage of the Timberlands In the event any of the above conditions is not satisfied on or before the Closing, either Seller will have the right, exercisable at such Party’s sole election, to exercise the extent of remedies described in Section 15(a), provided that if either Seller elects to exercise such assignment, lease, sale, transfer or other dispositionremedy, the Company other Seller shall be released from and discharged of all liability in respect of such obligations deemed to have made an identical election. Notwithstanding the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating thatforegoing sentence, in the opinion event of Purchaser’s failure to fulfill any condition precedent set forth in Section 14(c)(i) or (ii), Sellers shall provide written notice to Purchaser and Purchaser shall have seven (7) days from receipt of such Independent Expert, notice to fulfill the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after condition precedent before Sellers may exercise any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under remedies described in Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent15(c), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Forestar Group Inc.), Purchase and Sale Agreement (Forestar Group Inc.)
Conditions. The Company's interest obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the performance by each of the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company and the Subsidiaries contained in this Agreement may and in each of the Transaction Documents shall be assigned true and correct as a whole of the date hereof and at the Closing Date, except to the extent that the failure of such representations and warranties (without giving effect to any “material,” “materiality,” “Material Adverse Effect” or any similar terms, qualifications or limitations to such representations and warranties) to be true or correct individually or in partthe aggregate would not reasonably be expected to have a Material Adverse Effect. On or prior to the Closing Date, the Company and its interest each other party to the Transaction Documents (other than the Initial Purchasers) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the Facilities may aggregate, reasonably be leased, sold, transferred or otherwise disposed of by the Company as expected to have a whole or in part (whether an interest in a specific element or unit or an undivided interestMaterial Adverse Effect), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or .
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No Proceeding shall be made unless the assigneepending or, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Pricing Disclosure Package and the AuthorityFinal Offering Memorandum, all other obligations there shall not have been any event that would have a Material Adverse Effect.
(e) The Notes shall (i) have been designated PORTAL securities in accordance with the rules and regulations adopted by the Financial Industry Regulatory Authority relating to trading in the PORTAL market, and (ii) be eligible for clearance and settlement through DTC.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company hereunder to the extent or any securities of the interest assignedCompany (including, leasedwithout limitation, sold, transferred the placing of any of the foregoing ratings on credit watch with negative or otherwise disposed of, and developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided partSecurities Act, (ii) the Company's interest there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of outlook for any extension or extensions thereof at the option rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall extend beyond have given notice that it has assigned (or is considering assigning) a lower rating to the maturity Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer of the Company and (2) the Chief Financial Officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Transaction Documents are true and correct in all respects, except to the extent that the failure of such representations and warranties (without giving effect to any “material,” “materiality,” “Material Adverse Effect” or any similar terms, qualifications or limitations to such representations and warranties) to be true or correct individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the Bonds most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Pricing Disclosure Package and the Final Offering Memorandum or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long- term indebtedness of the Company or any Subsidiary of the Company that is material to the business, financial condition or results of operations of the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchasers may reasonably request covering such matters as are customarily covered in such certificates.
(iii) a perfection certificate, dated the Company's interest in the Facilities shall be soldClosing Date, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations executed by an officer of the Company and each of the Guarantors substantially in the form previously provided to counsel of Company.
(iv) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchasers or its counsel.
(v) the opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(vi) the opinion of ▇▇▇▇▇ ▇▇▇▇▇ Heuer & ▇▇▇▇▇, P.C., local Michigan counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(vii) the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, local Indiana counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(viii) the opinion of ▇▇▇▇▇, Brown, Koehn, Shors & ▇▇▇▇▇▇▇, P.C., local Iowa counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(ix) the opinion of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P., local Minnesota counsel to the Company, dated the Closing Date and addressed to the Initial Purchasers, in a form reasonably satisfactory to the Initial Purchasers.
(x) the opinion of Proskauer Rose LLP, counsel to the Initial Purchasers, dated the Closing Date, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(xi) a copy of a payoff letter or other evidence of repayment in form and substance reasonably satisfactory to the Initial Purchasers from the administrative agent under Section 5.01 the Existing Credit Facility, releasing the Company and the Guarantors from all obligations under the Existing Credit Facility and any guarantees thereunder, which letter shall become effective immediately following the application of the net proceeds of the Offering as set forth under the “Use of Proceeds” section in the Pricing Disclosure Package and Final Offering Memorandum.
(h) The Initial Purchasers shall have received on the date hereof for and on the remaining term Closing Date a certificate from the Chief Financial Officer of this Agreementthe Company, dated as of the date hereof and thereof, substantially in the form of Exhibit A attached hereto.
(i) The Initial Purchasers shall have received (A) a customary comfort letter from PricewaterhouseCoopers LLP, independent auditors, with respect to the Company, dated as of the date hereof, in form and substance satisfactory to the Initial Purchasers and its counsel, with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Memorandum and (B) a customary bring-down comfort letter from PricewaterhouseCoopers LLP, dated the Closing Date, in form and substance satisfactory to the Initial Purchasers and its counsel, to the extent of such assignment, lease, sale, transfer or other disposition, effect that PricewaterhouseCoopers LLP reaffirms the Company shall be released from and discharged of all liability statements made in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company its letter furnished pursuant to clause (bA) with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Memorandum.
(j) Each of the Transaction Documents shall be conditioned upon have been executed and delivered by all parties thereto, and the delivery by Initial Purchasers shall have received a fully executed original of each of the Transaction Documents.
(k) The terms of each Transaction Document shall conform in all material respects to the description thereof in the Pricing Disclosure Package and the Final Offering Memorandum.
(l) The Collateral Agent shall have received (with a copy for the Initial Purchasers) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Authority Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed ofdebtor, together with all copies of such financing statements (none of which shall cover any collateral described in any Collateral Documents, other rightsthan such financing statements that evidence Permitted Liens);
(iv) such other approvals, interestsopinions, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by documents as the Company Collateral Agent may reasonably request in form and substance reasonably satisfactory to the same Person Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (A) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the same or a related transactioncollateral described above is of the priority described in the Pricing Disclosure Package and the Final Offering Memorandum; and (B) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, stating that such rights, interests, assets and/or properties so described constitute facilities for the generationbenefit of the Secured Parties, transmission and/or distribution of electric energy and stating thatpursuant to a Collateral Documents, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties each case subject to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of Permitted Liens.
(xm) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser All Uniform Commercial Code financing statements or other transferee shall be released from similar financing statements and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents Uniform Commercial Code Form UCC-3 termination statements required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element clause (l)(i) and (l)(ii) above shall have been delivered to CT Corporation System or unit, or interest therein, shall no longer be deemed another similar filing service company acceptable to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Collateral Agent.
Appears in 2 contracts
Sources: Purchase Agreement (CPM Holdings, Inc.), Purchase Agreement (CPM Holdings, Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder Vendors to sell the Purchased Shares shall be subject to the extent satisfaction, on or before the Closing Date, of each of the interest assigned, leased, sold, transferred or otherwise disposed of, and following conditions precedent (each of which is for the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option exclusive benefit of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall Vendors and may be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery waived by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereofVendors, in whole or in partpart at their option, at and any time one or more of which, if not satisfied or waived, will relieve the Vendors of any obligation under this Agreement):
(a) each of the acts, undertakings, obligations, agreements and from time covenants of the Purchaser under this Agreement or under any Closing Document to timebe performed or complied with on or before the Closing Date shall have been duly performed or complied with in all material respects, andand the Vendors shall have received a certificate of the Purchaser addressed to the Vendors and dated as of the Closing Date, confirming same. The acceptance by the Vendors, in their sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to constitute a variation or amendment, to the extent therein described, of the provisions of this Agreement or any Closing Document; and
(b) each of the representations and warranties made in favour of the Vendors pursuant to this Agreement shall be true, complete and correct in all material respects (except that those representations and warranties which are qualified as to material, materiality, Material Adverse Change or similar expressions, or are subject to the same or similar type exceptions, shall be true, complete and correct in all respects) on the Closing Date as if made on and as of such assumption date, and the Vendors shall have received a certificate of the Purchaser addressed to the Vendors and dated as of the Closing Date, confirming same. The acceptance by the Company (but only to such extent)Vendors, the aforesaid assigneein their sole discretion, lessee, purchaser or other transferee shall be released from and discharged of a certificate which does not correspond in all liability in respect of such obligations. Anything herein respects to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act terms of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer preceding sentence shall be deemed to be part a waiver of the Facilities for the purposes of any representation or warranty contained in this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:extent therein described.
Appears in 2 contracts
Sources: Share Purchase Agreement (Argo Blockchain PLC), Share Purchase Agreement (Argo Blockchain PLC)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), Backstop Parties’ obligations to purchase any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form securities pursuant to the Trustee and Basic Commitment and/or the Authority, all other obligations of the Company hereunder Backstop Commitment are subject to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following conditions: (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, execution and delivery of mutually satisfactory definitive documentation among BFE Corp. and the Backstop Parties which incorporates the terms set forth herein (the “Definitive Agreements”); (ii) the Company's interest satisfaction or waiver by the Backstop Parties of the conditions to the Backstop Parties’ obligations to consummate the transactions contemplated by the Definitive Agreements as may be agreed upon in the Facilities Definitive Documents; (iii) BFE Corp. shall be leased in compliance with its obligations under the Loan Agreement and all other transaction documents relating to the Bridge Loan in all material respects; (iv) there has not occurred any material adverse change, or any development involving a prospective material adverse change, since the date hereof in the condition, financial or otherwise, or in the earnings, business, operations or properties of BFE Corp. and its subsidiaries, taken as a whole or in undivided part and (a “Material Adverse Change”); (v) there not having occurred after the term of such leasehold or date hereof at any time prior to the term of any extension or extensions thereof at the option funding of the Company shall extend beyond Basic Commitment and/or the maturity date of the Bonds Backstop Commitment any material disruption or (iii) the Company's interest material adverse change in the Facilities shall be soldfinancial, transferred banking or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating capital markets that, in the opinion commercially reasonable judgment of such Independent Expertthe Backstop Parties, would have a material adverse impact on the Fair Value success of the Rights Offering; (vi) all required approvals and consents shall have been obtained; (vii) all representations and warranties made by BFE Corp. in this Letter Agreement being true and correct in all material respects; (viii) BFE Corp. shall be in compliance with all covenants and other provisions of this Letter Agreement in all material respects; (ix) the Cargill Acknowledgement Letter (as hereinafter defineddefined below) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of being in full force and effect; (x) the aggregate principal amount each of the Bonds then Outstanding Executive Management Waiver Agreements (as defined in the Loan Agreement) being in full force and effect; (xi) no actions, suits or proceedings shall be pending or threatened that challenge any Definitive Agreement, this Letter Agreement, the Loan Agreement, the Cargill Acknowledgement Letter or any related agreement; (xii) the Backstop Parties having been reasonably satisfied with the Certificate of Designations setting forth the rights and preferences of the Series A Convertible Preferred Stock that reflects the terms set forth on Exhibit A hereto and other customary terms and provisions as determined by Greenlight in its reasonable discretion; (xiii) the receipt by the Backstop Parties of a legal opinion from Cravath, Swaine & ▇▇▇▇▇ LLP with respect to customary matters in a form satisfactory to Greenlight in its reasonable discretion; (xiv) BFE Corp. shall not have entered into any letter of intent, memorandum of understanding, agreement in principle or other agreement relating to any competing plan, proposal, offer or transaction with a third party other than Greenlight materially inconsistent with this Letter Agreement; and (yxv) the outstanding principal amount Board of all other obligations Directors of BFE Corp. shall have adopted Section 16b-3 Resolutions related to the Company representing indebtedness for borrowed money or for issuance to the deferred purchase price Backstop Parties of property which are being assumed by such Person; providedSeries A Convertible Preferred Stock, further, that after any such assumption, release Common Stock and discharge as aforesaidwarrants, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent form of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee which shall be released from and discharged of all liability satisfactory to Greenlight in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:sole discretion.
Appears in 2 contracts
Sources: Loan Agreement (BioFuel Energy Corp.), Backstop Rights Offering Agreement (BioFuel Energy Corp.)
Conditions. 3.1 The Company's interest completion of the sale and purchase of shares hereunder shall be conditional upon:
(a) The Purchaser’s satisfaction with the completion and result of a comprehensive due diligence inspection of the Company (which shall cover without limitation the legal, financial and commercial aspects) and the Purchaser shall have the absolute discretion in deciding whether or not it is satisfied with the result of such inspection.
(b) The obtaining of the relevant Board Resolution and Shareholders’ Resolution of the Company to approve the terms of this Agreement and all matters and affairs relating to the transaction hereunder, as required.
(c) To obtain all necessary consent and approval as may be required under the laws and regulations governing stock trading in the United States of America (including all relevant consents and approvals of governmental and regulatory authorities) regarding the transaction hereunder for the consideration as agreed by the Purchaser.
(d) If so required, the obtaining of a letter of approval issued by a lawyer in the United States of America by the Purchaser (in such format and contents as the Purchaser in its absolute discretion may determine) regarding the contents and the effects of this Agreement, including :-
(i) the legality and feasibility of the contents of this Agreement, including the setting of the price for the issue of any shares under this Agreement and all matters concerning the transfer of such shares;
(ii) to confirm that all the procedural requirements and requisite approval has been complied with and obtained for the acquisition of the shares of the Company under this Agreement; and
(iii) regarding all other matters the performance, fulfillment or occurrence of which the Purchaser may reasonably require.
(e) All the covenants and confirmation contained in this Agreement being truthful and free from misleading information from the date of this Agreement until the date of Completion.
(f) The Sale Shares be freely transferable to an independent third party without violation of the laws and regulations of the People’s Republic of China or its governmental policy.
3.2 The Vendor shall use its best endeavours to assist the Purchaser and such persons as the Purchaser may be assigned as a whole or in partauthorize for such purpose to complete the due diligence inspection and to allow them to enter into the premises of the Company and to peruse all the books, documents, contracts, records, tax forms, permits, correspondence and its interest in the Facilities may be leased, sold, transferred or otherwise disposed return forms and such other information of by the Company as the Purchaser may reasonably require, so that it can conduct a whole or in part comprehensive due diligence exercise (whether an interest in a specific element or unit or an undivided interestcovering, but not limited to, the legal, financial and business aspects of the Company), and allow copies to be made of the relevant documents. The Company’s directors and staff should give the Purchaser all the required information and explanations. For the avoidance of doubt, the carrying out of due diligence inspection will not exonerate the Vendor from any Person; providedobligation or liability towards the Purchaser nor limit the scope of such obligation or liability.
3.3 The Purchaser is entitled to waive any requirement under Clause 3.1 hereof. If, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve any condition under Clause 3.1(a) has not been fulfilled (or otherwise waived by the Company from its primary liability Purchaser) before 3:00 p.m. on the Completion Date or on such postponed date for its obligations under Section 5.01 hereof Completion as the Purchaser may agree or (b) the Purchaser is not satisfied with the result of the due diligence inspection according to Clause 3.2 hereof and notify the Vendor according in writing, then this Agreement shall be made unless become null and void and neither party shall have any further obligation or liability towards the assignee, lessee, purchaser other under this Agreement.
3.4 If any pre-condition to Completion has not been fulfilled on or other transferee, as before the case may be, prior to Completion Date or simultaneously with such assignment, lease, sale, transfer has been rendered unfulfillable then the Vendor or other disposition, assumes, by delivery the Company must upon its gaining knowledge of an instrument the situation forthwith inform the Purchaser in writing satisfactory in form to accordingly. Both parties hereby declare that notwithstanding the Trustee and the Authority, all other obligations issue of the Company hereunder to written notification mentioned above all the extent Vendor’s legal obligations under this Agreement will remain unchanged.
3.5 From the date of this Agreement until the Completion Date, save and except with the consent of the interest assignedPurchaser, leased, sold, transferred or otherwise disposed of, the Vendor covenants to procure that the Company will :- keep the daily operation and maintenance of best practice maintain its full operation; accounts payable in a timely fashion; maintain all records of the major operation the Vendor and the Company shall accurately. comply with the government’s main demands, except where is reason to object to such demand and the consent of the Purchaser to raise such objection having been obtained; pay up the payments which should be released paid out of the turnover or profits, taxes and discharged from fees and government funds, except where there is sufficient reason for claiming that such obligations sums are not payable and the prior consent of the Purchaser to object to such payment having been obtained; fulfill all the extent so assumed. Notwithstanding provisions of contracts signed by the foregoing, (a) if (i) Vendor or the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) ; refrain from selling any of the Company's interest in ’s assets and contractual rights without first obtaining the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option prior written consent of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Purchaser.
Appears in 2 contracts
Sources: Stock Transfer Agreement (Teda Travel Group Inc), Stock Transfer Agreement (Network Cn Inc)
Conditions. The Company's interest Notwithstanding anything in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by Plan to the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition contrary: (a) shall relieve the Company from its primary liability may, if it shall determine it necessary or desirable for its obligations under Section 5.01 hereof any reason, at the time of award of any Award or the issuance of any shares of Common Stock pursuant to any Award, require the recipient of the Award, as a condition to the receipt thereof or to the receipt of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Award or the shares of Common Stock issued pursuant thereto for his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of any Award or the shares of Common Stock issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with the award of any Award, the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Award shall not be made unless the assignee, lessee, purchaser awarded or other transfereesuch shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any time conditions not acceptable to the Company. Notwithstanding any other provision of the Plan, this Agreement or any other agreements entered into pursuant to the Plan, the Company will not be required to issue any shares of Common Stock under this Agreement or the Plan, and a Participant may not sell, assign, transfer or otherwise dispose of shares of Common Stock issued pursuant to any Awards granted under this Agreement or the Plan, unless (a) there is in effect with respect to such shares a registration statement under the Securities Act, and any applicable state or foreign securities laws or an exemption from time such registration under the Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other regulatory body or self-regulatory organization that the Committee, in its sole discretion, deems necessary or advisable. The Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to time, and, comply with such securities law or other restrictions. The Committee may restrict the rights of Participants to the extent necessary to comply with Article 16(b) of the Exchange Act, the Code or any such assumption by other applicable law or regulation. The grant of an Award pursuant to this Agreement or the Plan shall not limit in any way the right or power of the Company (but only to such extent)make adjustments, the aforesaid assigneereclassifications, lesseereorganizations or changes of its capital or business structure or to merge, purchaser exchange or other transferee shall be released from and discharged of consolidate or to dissolve, liquidate, sell or transfer all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements its business or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:assets.
Appears in 2 contracts
Sources: Stock Option Agreement (M-Tron Industries, Inc.), Stock Option Agreement (LGL Group Inc)
Conditions. The Company's interest (a) Properties Other than Coronado South and Rivermark. Except as provided in Section 5.8(b) and 5.8(c), but notwithstanding any other provision of this Agreement may to the contrary, Buyer's obligation to purchase a Property shall be assigned subject to and contingent upon the satisfaction or waiver of the following conditions precedent:
(i) The Title Company being irrevocably and unconditionally committed to issue, upon the sole condition of the payment of its regularly scheduled premium, the Policy with respect to such Property, insuring Buyer in the amount of the Purchase Price allocable to such Property that title to such Property is vested of record in Buyer on the Closing Date subject only to the Permitted Exceptions (and, to the extent provided in Section 3.3, any New Matters);
(ii) Except to the extent such matters are the responsibility of the Buyer under the Management Agreement relating to the Coronado South Property (during the time such Management Agreement is in effect), the physical condition of the Property shall be in at least substantially the same physical condition on the Closing Date as on the Effective Date, reasonable wear and tear and loss by casualty or condemnation excepted (subject to the provisions of Article VI); and
(iii) To the extent any of the following would reasonably be expected to materially and adversely affect the Buyer, any Property or Buyer's ownership of such Property after the Closing Date (including but not limited to the ability of Buyer to operate such Property as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interestmultifamily residential property), as of the Closing Date:
(A) There shall be no litigation, administrative action or governmental proceeding pending or threatened in writing by any applicable governmental agency against a Property or the Seller of such Property, which seeks to any Personrestrain or prohibit the purchase and sale of the Property; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assigneeof any such litigation, lesseeadministrative action or proceeding, purchaser or other transferee Buyer's obligation to purchase such Property shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreementnot terminate if, to the extent of within ten (10) business days, such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same action is dismissed or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for court order is issued allowing the generation, transmission and/or distribution of electric energy sale to proceed; and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after in the event the Closing of such Property proceeds on the basis of such a court order or in the event of any litigation, administrative action or governmental proceeding pending or threatened in writing against a Property or the Seller of such assumptionProperty which seeks to obtain damages or a discovery order with respect to this Agreement or the purchase and sale of the Property, release but which does not seek to restrain or prohibit the purchase and discharge as aforesaidsale of the Property, the Company may again assume Closing of such obligations under Property shall proceed and Sellers hereby agree to protect, indemnify and hold harmless Buyer and its subsidiaries, affiliates, partners and constituent entities, and all their respective employees, shareholders, officers and directors, successors and assigns, from and against any Losses (but specifically excluding lost profits) arising from such litigation or administrative action or other governmental proceeding, and such indemnity shall not be limited by the provisions of Section 5.01 hereof, in whole or in part, at any time and from time to time, 4.7; and,
(B) Except to the extent such proceedings are the subject of Sellers' indemnity as set forth in the second paragraph of Section 4.7, no proceedings shall be pending or threatened in writing by the applicable governmental agency which could or would cause the redesignation or other modification of the zoning classification of, or of any such assumption by the Company (but only to such extent)building code requirements applicable to, the aforesaid assigneeProperty or any portion thereof which would reasonably be expected to have a material adverse effect on Buyer's ability to own, lesseeoperate, purchaser or other transferee shall be released from maintain and discharged repair such Property as a multi-family residential property. The failure of all liability in any of the foregoing conditions to occur solely with respect of such obligations. Anything herein to the contrary notwithstanding, the Company any Property shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part a failure of the Facilities for the purposes of this Agreement by delivering such condition with respect to the Authority and the Trustee the agreements or any other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Property.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Essex Property Trust Inc), Purchase and Sale Agreement (United Dominion Realty Trust Inc)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part Employer agrees:
(whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (ai) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form With respect to the Trustee and the Authority, all other obligations investment option of the Company hereunder Plan that is funded under the Guaranteed Interest Option and to the extent that the Plan provides for allocations to, and transfers to and from such option are to be made solely at the discretion of the interest assignedindividuals covered by the Plan, leasedsuch allocations and transfers are to be made in accordance with instructions by the Employer or Participant covered by the Plan. We are to be given at least 60 days advance written notice by the Employer of any noncompliance with this condition.
(ii) The Employer is to provide us with any amendment to the Plan or its investment policy, soldany communication to the Participants covered by the Plan concerning the Guaranteed Interest Option or the investment option of the Plan to which it relates, transferred or otherwise disposed ofany change in the manner in which the Plan is administered. Any such document is to be provided to us at least 60 days before its effective date. We may also request, and the Company shall be released Employer will thereupon provide, any other information that we reasonably determine would bear upon the flow of funds to and discharged from such obligations to the extent so assumedGuaranteed Interest Option. Notwithstanding If the foregoing, (a) if conditions stated in (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, and (ii) above are not complied with or, if the Company's interest Employer fails to remit Contributions in accordance with Part III on "Contributions, Allocations and Discontinuance" or if we determine and so notify the Employer by written notice that an amendment to the Plan, its investment policy, or any change in the Facilities shall be leased as a whole or manner in undivided part which the Plan is administered would materially and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion flow of interest on funds to or from the Bonds Guaranteed Interest Option, then we will have the right to:
1. decline further requests for transfers to or from gross income for federal tax purposesthe Guaranteed Interest Option; and/or
2. After any leasedeem that a discontinuance of Contributions has occurred under the section, sale, transfer or other disposition "Discontinuance of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Contributions".
Appears in 2 contracts
Sources: Group Flexible Premium Deferred Variable Annuity Contract (Separate Account a of Axa Equitable Life Insurance Co), Group Annuity Contract (Separate Account a of Equitable Life Assu Soc of the Us)
Conditions. Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. ---------------------------------------------------------- The Company's interest in this Agreement respective obligation of each party to effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any and all of which may be assigned as a whole or waived in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element by the Company, the Parent or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transfereeMerger Sub, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, permitted by applicable law:
(a) if (i) This Agreement shall have been adopted by the Company's interest requisite vote of the holders of the shares of Company Common Stock in order to consummate the Merger and this Agreement shall be assigned as a whole or in undivided part, (ii) have been approved by the Company's interest in requisite vote under the Facilities shall be leased as a whole or in undivided part rules and the term of such leasehold or the term of any extension or extensions thereof at the option regulations of the Company shall extend beyond NNM by the maturity date stockholders of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and Parent.
(b) in No statute, rule or regulation shall have been enacted or promulgated by any Governmental Entity which prohibits the event that the assignee, lessee, purchaser or other transferee shall assume the obligations consummation of the Company under Section 5.01 hereof for the remaining term of this AgreementMerger, to the extent of such assignment, lease, sale, transfer or other disposition, the Company and there shall be released from and discharged no order or injunction of all liability a court of competent jurisdiction in respect effect precluding consummation of such obligations to the extent so assumed (but only to such extent)Merger; provided, however, that the release and discharge each of the Company pursuant parties to clause this Agreement shall have used commercially reasonable efforts to prevent the entry of such restraints and to appeal as promptly as possible any such restraints that may be entered.
(bc) The applicable waiting periods under the HSR Act shall be conditioned upon have expired or been terminated.
(d) The Registration Statement shall have become effective under the delivery Securities Act and no stop order or proceedings seeking a stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose, and no similar proceeding in respect of the Proxy Statement, shall have been threatened in writing by the Company SEC or shall have been initiated by the SEC.
(e) All consents of any Governmental Entity or third party, the failure of which to obtain would reasonably be expected to have a Material Adverse Effect with respect to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assignedSurviving Corporation, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company shall have been obtained.
Section 7.2 Conditions to the same Person in Parent's and Merger Sub's Obligations to ---------------------------------------------------------- Effect the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other Merger. The obligations of the Company representing indebtedness for borrowed money Parent and Merger Sub to consummate ----------------- the Merger shall be subject to the satisfaction on or for prior to the deferred purchase price Closing Date of property each of the following conditions, any and all of which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, be waived in whole or in part, at any time part by the Parent and from time to time, andMerger Sub, to the extent permitted by applicable law.
(a) The representations and warranties of any such assumption by the Company set forth in this Agreement shall be true and correct (but only i) as of the date of this Agreement (except to the extent such extentrepresentations 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 date) and (ii) as of the Effective Time as though made on and as of the Effective Time (except (x) 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 date, (y) for changes contemplated by this Agreement and (z) where the failures to be true and correct (without regard to any materiality, Company Material Adverse Effect or knowledge qualifications contained therein), individually or in the aforesaid assigneeaggregate, lesseehave not had, purchaser or other transferee and are not reasonably be expected to have, a Company Material Adverse Effect).
(b) The Company shall be released from have complied in all material respects with its obligations under this Agreement.
(c) The Parent shall have received an officer's certificate duly executed by each of the Chief Executive Officer and discharged Chief Financial Officer of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignmentconditions set forth in Sections 7.2(a) and 7.2(b) have been satisfied.
(d) The Parent shall have received an opinion of Brobeck, lease or sale will not impair the validity under the Act Phleger & Harrison LLP, in form and substance reasonably sati▇▇▇▇▇▇▇y ▇▇ ▇▇▇ Par▇▇▇, ▇▇▇ed as of the Bonds and will not adversely affect date during which the exclusion of interest Effective Time occurs, substantially to the effect that, on the Bonds from gross basis of facts, representations and assumptions set forth in such opinion, for United States federal income for federal tax purposes. After any lease, sale, transfer or other disposition the Merger will constitute a "reorganization" within the meaning of any element or unit section 368(a) of the FacilitiesCode. In rendering such opinion, or any interest thereinBrobeck, Phleger & Harrison LLP shall receive and may rely upon repres▇▇▇▇▇▇▇ns contained ▇▇ ▇▇▇▇ificates of the Company, the Parent and Merger Sub.
(e) The holders of less than five percent of the outstanding Shares at the Effective Time shall have validly delivered to the Company maya demand for appraisal rights with respect thereto, at its optionand shall not have voted in favor of the Merger or otherwise failed to perfect or effectively withdrawn or lost such rights under Section 262 of the DGCL.
Section 7.3 Conditions to the Company's Obligations to Effect the Merger. ------------------------------------------------------------ The obligations of the Company to consummate the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions, cause such element any and all of which may be waived in whole or unit, or interest thereinin part by the Company, to no longer the extent permitted by applicable law.
(a) The representations and warranties of Parent and Merger Sub set forth in this Agreement shall be deemed to be part true and correct (i) as of the Facilities for the purposes date of this Agreement by delivering (except to the Authority 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 date) and (ii) as of the Trustee Effective Time as though made on and as of the agreements or other documents required pursuant Effective Time (except (x) to Section 7.02 hereof together with an instrument signed 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 date, (y) for changes contemplated by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed this Agreement and (z) where the failures to be part true and correct (without regard to any materiality, Parent Material Adverse Effect or knowledge qualifications contained therein), individually or in the aggregate, have not had, and are not reasonably likely to have, a Parent Material Adverse Effect).
(b) Each of the Facilities for the purposes of Parent and Merger Sub shall have complied in all material respects with its obligations under this Agreement.
(c) The Company shall have received an officer's certificate duly executed by the Chief Financial Officer of the Parent to the effect that the conditions set forth in Sections 7.3(a) and 7.3(b) have been satisfied.
(d) The Company shall have received an opinion of Hale and Dorr LLP, in form and substance reasonably satisfactory to th▇ ▇▇mpany, ▇▇ted as of the date during which the Effective Time occurs, substantially to the effect that, on the basis of facts, representations and assumptions set forth in such opinion, for United States federal income tax purposes, the Merger will constitute a "reorganization" within the meaning of section 368(a) of the Code. For purposes In rendering such opinion, Hale and Dorr LLP shall receive and may rely upon representations cont▇▇▇▇d in ▇▇▇▇ificates of this Section 7.01:the Company, the Parent and Merger Sub.
(e) The shares of Parent Common Stock issuable to the stockholders of the Company as contemplated by Article 3 shall have been approved for listing on the NNM, subject to official notice of issuance.
Appears in 2 contracts
Sources: Merger Agreement (Legato Systems Inc), Merger Agreement (Otg Software Inc)
Conditions. 5.1 The Company's interest obligations of the Sellers and the Purchaser to complete the sale and purchase of the Shares are in this Agreement may be assigned as a whole all respects conditional on the satisfaction (or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transfereewaiver, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations ) of the Company hereunder to following matters (the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, “Conditions”):
(a) if (i) with regard to each of the Company's interest Project Licences, the approval of the Botswanan Minister of Minerals and Energy to the change in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest control in the Facilities shall be leased as a whole or in undivided part Group brought about by the sale and the term of such leasehold or the term of any extension or extensions thereof at the option purchase of the Company shall extend beyond Shares having been obtained, evidenced in writing and not withdrawn, such approval being either unconditional or on conditions that do not have a material adverse effect (the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and “Botswana CoC Condition”);
(b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations approval of the Company under Section 5.01 hereof for Transaction by the remaining term of this AgreementCompetition and Consumer Authority having been obtained, to evidenced in writing and not withdrawn, such approval being either unconditional or on conditions that do not have a material adverse effect;
(c) the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge approval of the Company pursuant to clause Transaction by SAMR, ▇▇ving been obtained, evidenced in writing and not withdrawn;
(bd) shall be conditioned upon the delivery requisite majority of relevant shareholders of the Purchaser Guarantor as required under the rules entitled the “Rules (the “Listing Rules”) Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Stock Exchange”) as published by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and Stock Exchange from time to time, shall have approved as a “Major Transaction” (as defined in the Listing Rules) by written shareholders' approval under Rule 14.44 of the Listing Rules, the entry by the Purchaser into this Agreement and the transactions contemplated by this Agreement (the “Shareholder Approval Condition”);
(e) completion by the Purchaser of an NDRC Filing; and
(f) there shall be no Order in effect that prohibits the Sellers and Purchaser completing the sale and purchase of the Shares. For the avoidance of doubt, the Condition in Clause 5.1(d) shall not be waived by any of the Parties for any reason whatsoever.
5.2 The Sellers shall use their best endeavours to procure the fulfilment of the Botswana CoC Condition as soon as possible, and in any event before the Long Stop Date including making all appropriate filings within ten (10) Business Days of this Agreement.
5.3 The Purchaser shall:
(a) subject to Clause 5.6, use its best endeavours to procure the fulfilment of the Botswana CoC Condition and Antitrust Conditions as soon as possible, and in any event before the Long Stop Date, including making all appropriate filings within ten (10) Business Days of this Agreement (provided that all necessary information and documents are provided by the Sellers upon request with no unreasonable delay);
(b) use its best endeavours to procure the fulfilment of the Shareholder Approval Condition as soon as possible, and in any event before the Long Stop Date; and
(c) submit the NDRC Filing to the NDRC as soon as practicable following the date of this Agreement and in any event within ten (10) Business Days of this Agreement.
5.4 Without limiting the generality of Clause 5.3 and Clause 15.4, the Purchaser Guarantor and Purchaser agree to provide or procure the provision of any guarantee in favour of the Government of Botswana in respect of the Group’s obligations under the Project Licences as may be requested by the Minister of Mineral Resources, Green Technology and Energy Security in connection with the satisfaction of the Botswana CoC Condition.
5.5 In respect of the Antitrust Conditions, the Purchaser shall:
(a) prepare and submit any notifications, filings or submissions (or drafts thereof as appropriate in certain jurisdictions) to the applicable Regulatory Authority within ten (10) Business Days from the later of the date of this Agreement or, in the case of a Regulatory Authority not identified in this Agreement, the date of that Regulatory Authority issues a request or enquiry relating to the transactions contemplated by the Transaction Documents, with all information required in connection therewith, provided that all necessary information and documents are provided by the Sellers upon request with no unreasonable delay;
(b) allow the Lead Seller the opportunity to participate in any important/substantial call or meeting with the Regulatory Authority, and within two (2) Business Days inform the Lead Seller of the content of any meeting, material conversation and any other communication which takes place between the Purchaser (or its Agents) and the Regulatory Authority in which the Lead Seller did not participate and provide copies or, in the case of non-written communications, a written summary, to the Lead Seller;
(c) procure that the Lead Seller is given a reasonable opportunity to review and comment on drafts of all notifications, filings and submissions before they are submitted to the Regulatory Authority and provide the Lead Seller with final copies of all such notifications, filings and submissions (it being acknowledged that certain such drafts and/or documents may be shared on a confidential basis only with outside counsel) and take account of any reasonable comments that the Lead Seller may have;
(d) use its best endeavours to avoid any declaration of incompleteness by the Regulatory Authority or any other suspension of the periods for clearance;
(e) not, without the prior written consent of the Lead Seller, withdraw any notification, filing or submission made to the Regulatory Authority; and
(f) bear all filing fees (and necessary translation costs) associated with the notification and filings made in order to satisfy the Antitrust Conditions, with each Party bearing its own legal fees.
5.6 In respect of the Conditions in Clause 5.1(a) and 5.1(b), nothing in this Agreement shall require the Purchaser to offer to the relevant Regulatory Authorities or to accept or agree any undertakings, commitments, conditions, modifications or remedies, whether involving divestments or disposals or constraints on prices or other behaviour or otherwise in order to obtain the satisfaction such Conditions (each, a “Regulatory Undertaking”), in each case to the extent that such a Regulatory Undertaking would have a material adverse effect.
5.7 The Sellers and the Purchaser agree that the Purchaser shall be primarily responsible for responding to all requests and enquiries from the Regulatory Authority and such requests and enquiries shall be dealt with, in each case, by the Lead Seller and the Purchaser in consultation with each other and the Lead Seller and the Purchaser shall co-operate with each other and the Regulatory Authority, to the extent of any such assumption necessary and on a confidential basis, and provide all necessary information and assistance reasonably required by the Company other or by the Regulatory Authority as soon as reasonably practicable upon being requested to do so, provided that any information provided in relation to a Seller (but rather than the Group) shall be provided only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Regulatory Authority and the Trustee an opinion of Bond Counsel Purchaser’s Lawyers on a strictly confidential basis and shall not be provided to the effect Purchaser.
5.8 Nothing in Clause 5.5 and 5.7 shall require a Party to share information, documents or communications with the other if prohibited by a Regulatory Authority from doing so.
5.9 Nothing in Clause 5.5 and 5.7 shall require a Party to disclose to or receive from the other any competitively sensitive information or business secrets. In order to comply with their obligations in Clause 5.5 and 5.7, the Parties will make arrangements for the provision of copies of relevant information, documents and communications to the other Party's external advisors on an external advisor only basis together with redacted versions excluding any such competitively sensitive information or business secrets to the other Party.
5.10 Without prejudice to Clauses 5.2 and 5.3, each of the Purchaser (on the one hand) and the Sellers (on the other hand) will promptly:
(a) co-operate with the other with a view to achieving satisfaction of the Botswana CoC Condition;
(b) provide the other with any necessary information, assistance and documents reasonably required for the purposes of making any submissions and notifications or filings necessary for the purposes of satisfying the Botswana CoC Condition; and
(c) provide any Relevant Authority with any necessary information or documents required by such Relevant Authority for the purposes of satisfying the Botswana CoC Condition.
5.11 Each Seller undertakes to notify the Purchaser (and any other Seller which is not otherwise aware) in writing, and the Purchaser undertakes to notify the Sellers in writing, of anything which will or may prevent any of the Conditions from being satisfied on or before the Long Stop Date or Extended Long Stop Date (if applicable) promptly after it comes to their attention.
5.12 The Purchaser undertakes to notify the Lead Seller as soon as possible on becoming aware that any of the Conditions has been satisfied.
5.13 Each of the Sellers and the Purchaser shall bear and pay its own costs and expenses (including all legal expenses) incurred by it in connection with or incidental to the satisfaction of the Conditions, save that the proposed assignmentPurchaser shall be responsible for any fees, lease charges or sale will not impair other costs payable in connection with the validity under submissions, notifications or filings referred to in Clause 5.5(a).
5.14 Except with the Act written consent of the Bonds Lead Seller, the Purchaser shall not, and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit shall procure that each member of the FacilitiesPurchaser’s Group shall not, directly or indirectly, either alone or in partnership or jointly or in conjunction with any interest thereinperson, as principal, agent, shareholder or in any other manner whatsoever, contact any Government Entities (including any Government Official thereof) in connection with the Company Transaction other than any Regulatory Authority.
5.15 The Lead Seller may, at its optionsole discretion, cause by written notice to the Purchaser, extend the Long Stop Date by up to three (3) months from the Long Stop Date, and the new Long Stop Date resulting from such element or unit, or interest therein, to no longer extension shall be deemed to be part the “Extended Long Stop Date”.
5.16 If any of the Facilities for Conditions are not fulfilled or waived on or before the purposes of Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller may, at its sole discretion, be entitled to treat this Agreement by delivering as terminated subject to, and on the basis set out in, Clause 16.2.
5.17 If, at any time on or prior to the Authority Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller becomes aware that any Condition cannot be satisfied or fulfilled and it has given notice thereof as contemplated by Clause 5.11, it may thereafter, in its sole discretion, be entitled to treat this Agreement as terminated subject to, and on the basis set out in, Clause 16.2.
5.18 Where the Agreement is terminated by the Lead Seller pursuant to Clause 5.16 or Clause 5.17 solely as a result of any one or more of the Conditions in Clauses 5.1(c), 5.1(d) or 5.1(e) not being satisfied, the Purchaser shall pay the Pro Rata Portion of the Break Fee to each Seller. The Purchaser shall make such payment within thirty (30) Business Days after the later of the date of termination and the Trustee date the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part Purchaser receives notice of US dollar-denominated bank account details from all Sellers.
5.19 Payment of the Facilities Break Fee in accordance with Clause 5.18 shall be the Sellers’ sole and exclusive remedy for such termination.
5.20 If, at any time on or prior to the purposes of Long Stop Date or the Extended Long Stop Date (if applicable), the Lead Seller or the Purchaser concludes that there is an Order in effect as contemplated by Clause 5.1(f), such Party may provide written notice to the other Party at any time thereafter, at its sole discretion, terminating this Agreement. For purposes of this Section 7.01:Agreement subject to, and on the basis set out in, Clause 16.2.
Appears in 2 contracts
Sources: Share Sale and Purchase Agreement, Share Sale and Purchase Agreement
Conditions. (a) The Company's interest in this Agreement may obligations of the Debt Holders to exchange MMC Debt Obligations for Shares at the Closing shall be assigned subject to the satisfaction (or waiver) of the following conditions:
(i) the Private Letter Ruling (as a whole or in part, and its interest defined in the Facilities may be leased, sold, transferred or otherwise disposed Form of by Separation and Distribution Agreement filed as Exhibit 10.3 to the Company as a Registration Statement) shall remain in full force and effect and shall not have been revoked in whole or in part as of the applicable Closing Date;
(whether an interest in a specific element ii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer permanent injunction or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof order enacted, entered, promulgated, enforced or (b) issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be made unless in effect preventing the assignee, lessee, purchaser or other transferee, as transactions contemplated to occur at the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, Closing;
(aiii) if (iA) the Company's interest representations and warranties of MMC in this Agreement shall be assigned true and correct in all respects on and as of the Closing Date, with the same effect as if made on the applicable Closing Date, and (B) MMC shall have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(iv) (A) the representations and warranties of MMI in this Agreement shall be true and correct in all respects on and as of the applicable Closing Date, with the same effect as if made on the applicable Closing Date, and (B) MMI shall have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(v) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the applicable closing pursuant to the Underwriting Agreement); and
(vi) MMC shall have furnished to each Debt Holder a whole properly completed and executed certification of non-foreign status substantially in the form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv). In the event that any of the conditions set forth in this clause (a) shall not have been fulfilled (or waived by the Debt Holders) on the Closing Date, this Agreement may be terminated by the Debt Holders by delivering a written notice of termination to MMC and MMI.
(b) The obligations of MMC to exchange Shares for MMC Debt Obligations at the Closing shall be subject to the satisfaction (or waiver) of the following conditions:
(i) (A) the representations and warranties of each Debt Holder in undivided partthis Agreement shall be true and correct in all respects on and as of the applicable Closing Date, with the same effect as if made on the applicable Closing Date, and (B) each Debt Holder shall have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date;
(ii) the Company's interest Private Letter Ruling shall remain in the Facilities full force and effect and shall be leased as a not have been revoked in whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option as of the Company shall extend beyond the maturity date of the Bonds or applicable Closing Date;
(iii) the Company's interest in the Facilities no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be sold, transferred or otherwise disposed of as a whole or in undivided part, effect preventing the transactions contemplated to occur at the Closing; and
(iv) the Underwriting Agreement shall have been duly executed and (b) delivered and shall remain in full force and effect and the event that the assignee, lessee, purchaser or other transferee shall assume conditions to the obligations of the Company under Section 5.01 hereof Underwriters to purchase and pay for the remaining term of this Agreement, applicable Shares as set forth in the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations applicable closing pursuant to the extent so assumed (but only to such extentUnderwriting Agreement); provided, however, . In the event that the release and discharge any of the Company pursuant to conditions set forth in this clause (b) shall not have been fulfilled (or waived by MMC) on the Closing Date, this Agreement may be conditioned upon the delivery terminated by the Company MMC by delivering a written notice of termination to the Authority Debt Holders and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:MMI.
Appears in 2 contracts
Sources: Debt for Equity Exchange Agreement (Marcus & Millichap, Inc.), Debt for Equity Exchange Agreement (Marcus & Millichap, Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) If Purchaser has actual knowledge, or should ---------- have actual knowledge by inspection of the Property or of the public records at or before the Closing, that (i) any representation of Seller hereunder is untrue, as of the date represented, or (ii) Seller has failed to perform, observe or comply with any covenant, agreement or condition to be performed hereunder, Purchaser shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or notify Seller of such within five (5) days after discovery by Purchaser. Purchaser's failure to so notify Seller shall be deemed to constitute Purchaser's waiver of same as a condition to Closing and otherwise.
(b) In the event that (A) any of Seller's representations made in Section 3.1 are not true as of the date of this Agreement (and for the purposes hereof a representation shall be made unless untrue only if factually untrue and having a material adverse business or legal impact on Purchaser), and (B) Purchaser has actual knowledge, or should have actual knowledge by inspection of the assigneeProperty or of the public records at or before the Closing that any of Seller's representations referred to in clause (A) of this sentence are untrue, lessee, purchaser or other transfereethen Purchaser may, as the case may be, prior to its sole remedy (whether at law or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authorityequity), all other obligations of the Company hereunder claims for damages or specific performances being hereby expressly waived by Purchaser, elect to the extent of the interest assigned, leased, sold, transferred or otherwise disposed ofterminate this Agreement, and the Company sole liability of Seller shall be released of to return to Purchaser the Deposit, together with any interest accrued thereon, and discharged from such obligations to the extent so assumed. Notwithstanding the foregoingthereupon, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) null and void and the Company's interest in the Facilities parties hereto shall be leased as a whole or in undivided part relieved of all further obligations and liability under this Agreement, other than with respect to those obligations and liabilities which expressly survive the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term termination of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 2 contracts
Sources: Sale Agreement (Sl Green Realty Corp), Agreement of Sale and Purchase (Sl Green Realty Corp)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve The obligations of each party to consummate the Company from its primary liability for its obligations under Section 5.01 hereof or Blackstone Repurchase and to effectuate the Closing are subject to the closing of the Blackstone Secondary Offering and the delivery to the underwriters of the shares purchased in the Blackstone Secondary Offering and the Purchase Price per share being no greater than $ .
(b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other The obligations of the Company hereunder to consummate the Blackstone Repurchase and to effectuate the Closing are subject to the extent condition that the representations and warranties of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest Blackstone set forth in this Agreement shall be assigned true and correct in all material respects on and as a whole or of the Closing Date as though made on and as of the Closing Date.
(c) The obligations of Blackstone to consummate the Blackstone Repurchase and to effectuate the Closing are subject to the condition that the representations and warranties of the Company set forth in undivided part, this Agreement shall be true and correct in all material respects on and as of the Closing Date as though made on and as of the Closing Date.
(d) The obligations of each party to consummate the Blackstone Repurchase and to effectuate the Closing are subject to the condition that immediately after giving effect to the consummation of the Blackstone Repurchase (i) the present fair value and fair saleable value of the assets of the Company is not less than the total amount of the Company’s liabilities (including contingent liabilities); (ii) the Company's interest in the Facilities shall Company should be leased able to pay its debts as a whole or in undivided part they become due and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or mature; (iii) the Company does not engage in any business or transaction, for which its property would constitute unreasonably small capital; and (iv) the actual, current value of the Company's interest in the Facilities ’s assets minus its liabilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in greater than the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Company’s statutory capital.
Appears in 2 contracts
Sources: Share Repurchase Agreement (SeaWorld Entertainment, Inc.), Share Repurchase Agreement (SeaWorld Entertainment, Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder Purchaser to purchase the Purchased Shares shall be subject to the extent satisfaction, on or before the Closing Date, of each of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released following conditions precedent (each of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof which is for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall Purchaser’s exclusive benefit and may be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery waived by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereofPurchaser, in whole or in partpart at its option, at and any time one or more of which, if not satisfied or waived, will relieve the Purchaser of any obligation under this Agreement):
(a) each of the acts, undertakings, obligations, agreements and from time covenants of the Vendors and the Targets under this Agreement or under any Closing Document to timebe performed or complied with on or before the Closing Date shall have been duly performed or complied with in all material respects, andand the Purchaser shall have received a certificate of the Vendors addressed to the Purchaser and dated as of the Closing Date confirming same. The acceptance by the Purchaser, in its sole discretion, of a certificate which does not correspond in all respects to the terms of the preceding sentence shall be deemed to constitute a variation or amendment, to the extent therein described, of the provisions of this Agreement or any Closing Document;
(b) each of the representations and warranties made in favour of the Purchaser pursuant to this Agreement shall be true, complete and correct in all material respects (except that those representations and warranties which are qualified as to material, materiality, Material Adverse Change or similar expressions, or are subject to the same or similar type exceptions, shall be true, complete and correct in all respects) on the Closing Date as if made on and as of such assumption date, and the Purchaser shall have received a certificate of the Vendors addressed to the Purchaser and dated as of the Closing Date confirming same. The acceptance by the Company (but only to such extent)Purchaser, the aforesaid assigneein its sole discretion, lessee, purchaser or other transferee shall be released from and discharged of a certificate which does not correspond in all liability in respect of such obligations. Anything herein respects to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act terms of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer preceding sentence shall be deemed to be part a waiver of any representation or warranty contained in this Agreement to the extent therein described;
(c) there shall not have occurred, in the judgment of the Facilities for Purchaser, acting reasonably, a Material Adverse Change since the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes execution of this Agreement. For purposes ;
(d) the Purchaser shall be satisfied that no Claim or Threatened Claim shall have been taken, made, threatened or instituted, whether or not having the force of this Section 7.01:Law, and no Law or Order shall have been proposed, enacted, promulgated, issued or applied: (i) to prohibit or impose any limitation or condition on the completion of the transactions contemplated herein or in any Closing Document or the right of the Purchaser to own or exercise full rights of ownership of all of the Purchased Shares; or (ii) which, if the transactions contemplated herein were completed, could reasonably be expected to result in a Material Adverse Change or prevent the Targets from carrying on, in all material respects, the Business as presently carried on;
(e) the Purchase shall be satisfied with the results of its due diligence relating to the Targets and the Business;
(f) all Required Third Party Consents shall have been obtained;
(g) the Pre-Closing Reorganization shall have been duly completed to the satisfaction of the Purchaser; and
(h) the Purchaser shall be satisfied, acting reasonably, that no fact or circumstance identified in its confirmatory due diligence of the Targets, their respective assets and the Business would or could result in a Material Adverse Change or materially and adversely affect, delay or impair the transactions contemplated hereby.
Appears in 2 contracts
Sources: Share Purchase Agreement (Argo Blockchain PLC), Share Purchase Agreement (Argo Blockchain PLC)
Conditions. The Company's interest in If with respect to the Borrowed Securities, (i) the Company has not performed all of the obligations required to be performed by it under this Agreement may be assigned as a whole on or in part, and its interest in prior to the Facilities may be leased, sold, transferred Closing Time or otherwise disposed any Date of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transfereeDelivery, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond conditions set forth in Section 5 hereof have not been satisfied on or prior to the maturity date Closing Time or any Date of Delivery, as the Bonds case may be, or (iii) any of the Company's interest conditions set forth in the Facilities applicable Forward Sale Agreement shall not have been satisfied on or prior to the Closing Time or any Date of Delivery, as the case may be sold(clauses (i) through (iii), transferred or together, the “Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Securities otherwise disposed of as a whole or in undivided partdeliverable on such date. In addition, and (b) in the event the Forward Seller determines that the assigneein connection with establishing its commercially reasonable hedge position, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other dispositionin its sole judgment, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed Forward Seller (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (bor its affiliate) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) is unable, after using commercially reasonable efforts, to borrow and deliver for sale the aggregate principal amount full number of Borrowed Securities to be borrowed and sold pursuant to this Agreement at the Bonds then Outstanding and Closing Time or on such Date of Delivery or (y) would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so with respect to all or any portion of such full number of Borrowed Securities, then, in each case and upon notice delivered no later than 9:00 A.M. (Eastern time) at the outstanding principal amount Closing Time or the Date of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; providedDelivery, further, that after any such assumption, release and discharge as aforesaidapplicable, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time Forward Seller shall only be required to time, and, deliver for sale to the extent Underwriters on the Closing Time or such Date of any such assumption by Delivery, as the Company (but only to such extent)case may be, the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged aggregate number of all liability in respect shares of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect Common Stock that the proposed assignment, lease Forward Seller or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer its affiliate is able to borrow in connection with establishing its hedge position at or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause below such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:cost.
Appears in 2 contracts
Sources: Underwriting Agreement (STAG Industrial, Inc.), Underwriting Agreement (STAG Industrial, Inc.)
Conditions. The Company's interest In addition to being subject to the satisfaction of the conditions contained in this Agreement Sections 5.1 and 5.2, the obligation of an Issuing Bank to issue any Letter of Credit is subject to the satisfaction in full of the following conditions:
(A) the Borrower shall have delivered to the applicable Issuing Bank (at such times and in such manner as such Issuing Bank may reasonably prescribe) and the Administrative Agent, a request for issuance of such Letter of Credit in substantially the form of Exhibit C hereto (each such request a "REQUEST FOR LETTER OF CREDIT"), duly executed applications for such Letter of Credit, and such other documents, instructions and agreements as may be assigned as a whole or in partrequired pursuant to the terms thereof (all such applications, documents, instructions, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), agreements being referred to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, herein as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of"L/C DOCUMENTS"), and the Company proposed Letter of Credit shall be released reasonably satisfactory to such Issuing Bank as to form and content; and
(B) as of the date of issuance no order, judgment or decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain the applicable Issuing Bank from issuing such Letter of Credit and discharged no law, rule or regulation applicable to such Issuing Bank and no request or directive (whether or not having the force of law) from a Governmental Authority with jurisdiction over such obligations Issuing Bank shall prohibit or request that such Issuing Bank refrain from the issuance of Letters of Credit generally or the issuance of that Letter of Credit; and
(C) in the case of LaSalle acting in its capacity as Issuing Bank, the Borrower shall have duly executed and delivered to LaSalle the extent so assumed. Notwithstanding L/C Master Agreement and the foregoing, (a) if (i) the Company's interest in this Agreement Borrower shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) compliance therewith; provided that in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations terms and conditions of the Company under Section 5.01 hereof for L/C Master Agreement (or any similar agreement entered into with any other Issuing Bank) shall conflict with the remaining term terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern and control to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:conflict.
Appears in 2 contracts
Sources: Credit Agreement (Alion Science & Technology Corp), Credit Agreement (Alion Science & Technology Corp)
Conditions. This Agreement is expressly conditioned upon the Commission’s acceptance of all its provisions, without change or condition. If the Commission does not accept this Agreement in its entirety, any party hereto, at its sole option exercised within fifteen (15) days of such Commission order, may withdraw from this Agreement, in which event it shall be deemed to be null and void and without effect and shall not be relied upon by the Company, Ratepayer Intervenors, Staff, the OCA, or any party to this proceeding, or the Commission, for any purpose. The Company's interest Commission’s acceptance of this Agreement shall not constitute continuing approval of, or precedent regarding, any particular principle or issue in this proceeding. The discussions that produced this Agreement have been conducted on the explicit understanding that all offers of settlement relating thereto are and shall be confidential, shall be without prejudice to the position of any party or participant representing any such offer or participating in any such discussion, and are not to be used in connection with any future proceeding or otherwise. The Settling Parties agree that all testimony and supporting documentation should be admitted as full exhibits for purposes of reviewing this Agreement. The Settling Parties’ agreement to admit all testimony without challenge does not constitute agreement by the Settling Parties that the content of the written testimony is accurate or what weight, if any, should be given to the views of any witness, except as may be specifically provided in this Agreement. The identification of the resolution of any specific issue in this Agreement may be assigned as a whole or in partdoes not indicate any of the Settling Parties’ agreement to that resolution for purposes of any future proceeding, and its interest in nor does the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), reference to any Person; providedother document bind the Settling Parties to the contents of, howeveror recommendations in, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability document for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery purposes of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations any future proceeding. The Commission’s approval of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest recommendations in this Agreement shall be assigned as not constitute a whole determination or in undivided partprecedent with regard to any specific adjustments, (ii) but rather shall constitute only a determination that the Company's interest in rates resulting from the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided partagreement, and (b) other specific conditions stated in this Agreement are just and reasonable and otherwise consistent with the event that the assigneelaw. This Agreement may be executed by facsimile and in counterparts, lessee, purchaser or other transferee each of which shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part an original, and all of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unitwhich, or interest thereintaken together, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:constitute one agreement binding on all Settling Parties.
Appears in 2 contracts
Sources: Settlement Agreement, Settlement Agreement
Conditions. SECTION 8.1 Conditions to Each Party's Obligation to Effect the Merger. The Company's interest in this Agreement may respective obligations of each party to effect the Merger shall be assigned as a whole subject to the fulfillment at or in part, and its interest in prior to the Facilities may be leased, sold, transferred or otherwise disposed Closing Date of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition following conditions:
(a) this Agreement and the transactions contemplated hereby shall relieve have been approved and adopted by the requisite vote of the stockholders of the Company from its primary liability for its obligations and Parent under Section 5.01 hereof or applicable law and applicable listing requirements;
(b) the shares of Parent Common Stock issuable in the Merger and those to be reserved for issuance upon exercise of stock options or warrants or the conversion of convertible securities shall be made unless have been authorized for listing on the assigneeNasdaq National Market;
(c) the waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(d) the Registration Statement shall have become effective in accordance with the provisions of the Securities Act, lessee, purchaser and no stop order suspending such effectiveness shall have been issued and remain in effect and no proceeding for that purpose shall have been instituted by the SEC or any state regulatory authorities;
(e) no preliminary or permanent injunction or other transfereeorder or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, as order or decree lifted);
(f) no statute, rule or regulation shall have been enacted by any state or federal government or governmental agency in the case may beUnited States which would prevent the consummation of the Merger or make the Merger illegal;
(g) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., prior certified public accountants for Parent, shall have delivered a letter, dated the Closing Date, addressed to or simultaneously with such assignmentParent, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form and substance reasonably satisfactory to the Trustee and the AuthorityParent, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale Merger will not impair the validity under the Act qualify for a pooling of interests accounting treatment if consummated in accordance with this Agreement; and
(h) each of the Bonds and will not adversely affect parties to the exclusion of interest on Agreement shall have received a letter dated the Bonds Closing Date, addressed to the Company, from gross income for federal tax purposes. After any leaseErnst & Young, sale, transfer or other disposition of any element or unit of LLP regarding such firm's concurrence with the Facilities, or any interest therein, Company's management's conclusions that no conditions exist related to the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of that would preclude the Facilities Parent's accounting for the purposes Merger with the Company as a pooling of this Agreement by delivering to the Authority interests under Accounting Principles Board Opinion No. 16 if closed and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together consummated in accordance with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Allied Waste Industries Inc)
Conditions. 6.2.1 Notwithstanding anything herein contained, the obligation of the Vendor to complete the transactions provided for herein will be subject to the fulfilment of the following conditions at or prior to the Time of Closing, and the Purchaser covenants to use its commercially reasonable efforts to ensure that such conditions, to the extent under the control of the Purchaser, are fulfilled:
(a) The Company's interest consideration payable pursuant to Sections 2.1(a), 2.1(b) and 2.1(c) to Vendor for the acquisition of the Purchased Shares shall be delivered by the Purchaser.
(b) All representations and warranties of the Purchaser as contained in this Agreement may shall be assigned true and correct in all material respects to the extent not qualified by materiality or Purchaser Material Adverse Effect and in all respects to the extent qualified by materiality or Purchaser Material Adverse Effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a whole or in partspecified date, and its interest in the Facilities may accuracy of which shall be leased, sold, transferred or otherwise disposed determined as of that specified date).
(c) All covenants to be performed by the Company Purchaser by the Closing Date as contained in this Agreement shall have been performed and the Purchaser shall have complied in all material respects with its covenants in this Agreement.
(d) All Consents and Regulatory Approvals required to be obtained by the Purchaser in connection with this Agreement and the Investor Rights Agreement and the transactions contemplated hereunder and thereunder shall have been obtained on terms and conditions satisfactory to Vendor, acting reasonably.
(e) There shall not exist any prohibition under Law, including a whole cease trade order, injunction or other prohibition or order at law or under applicable legislation, against Purchaser which shall prevent the consummation of the transactions contemplated hereby or prevent the trading of the common shares of the Purchaser.
(f) Since the date of this Agreement, there shall not have been any Purchaser Material Adverse Effect.
(g) The Purchaser executing and delivering in part favour of Vendor the Investor Rights Agreement.
(whether an interest h) The Purchaser shall deliver to the Vendor all in form and substance acceptable to Vendor, acting reasonably:
(i) a specific element or unit or an undivided interestcertificate of incumbency with respect to Purchaser;
(ii) a copy of the resolution of its Board of Directors (certified by a duly appointed officer as true and correct), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve authorising the Company from its primary liability for signature of and the performance by Purchaser of its obligations under this Agreement, the Investor Rights Agreement, and each of the other documents (if any) to be executed by Purchaser pursuant to this Agreement or any of the foregoing agreements; and
(iii) a certificate by Purchaser confirming that (i) all representations and warranties made pursuant to Section 5.01 hereof 3.2 of this Agreement are true and correct in all material respects to the extent not qualified by materiality or Purchaser Material Adverse Effect and in all respects to the extent qualified by materiality or Purchaser Material Adverse Effect as of the Closing Date as if made on and as of such date (b) except for representations and warranties made as of a specified date, the accuracy of which shall be made unless determined as of that specified date) and (ii) all covenants to be performed by the assigneePurchaser by the Closing Date as contained in this Agreement have been performed and the Purchaser has complied in all material respects with its covenants in this Agreement.
(i) The Purchaser shall have delivered to Vendor all documentation required under the policies of the CSE relating to the issuance of Talisker Securities to Vendor pursuant to Section 2.1.
(j) The Samsung Security Interest shall have been discharged.
6.2.2 Notwithstanding anything herein contained, lesseethe obligation of the Purchaser to complete the transactions provided for herein will be subject to the fulfilment of the following conditions at or prior to the Time of Closing, purchaser or other transfereeand Vendor and Bralorne, as the case may be, prior covenant to or simultaneously with use their commercially reasonable efforts to ensure that such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, conditions are fulfilled:
(a) if (i) the Company's interest All representations and warranties of Vendor in this Agreement shall be assigned true and correct in all material respects to the extent not qualified by materiality or material adverse effect and in all respects to the extent qualified by materiality or material adverse effect as of the Closing Date as if made on and as of such date (except for representations and warranties made as of a whole specified date, the accuracy of which shall be determined as of that specified date).
(b) All covenants to be performed by the Vendor or Bralorne by the Closing Date as contained in undivided partthis Agreement shall have been performed in all material respects and the Vendor or Bralorne, as the case may be, shall have complied in all material respects with its covenants in this Agreement.
(c) All Consents and Regulatory Approvals required to be obtained by Bralorne or Vendor in connection with this Agreement and the transactions contemplated hereunder shall have been obtained on terms and conditions satisfactory to Purchaser, acting reasonably.
(d) Vendor shall have caused Bralorne to file a notice of alteration in the form attached hereto as Schedule 6.2.2(d) to create the Class A Shares and Vendor shall have subscribed for that number of the Class A Shares for nominal consideration to provide Vendor with 50.1% of the outstanding votes required to elect Bralorne's directors immediately after the Closing.
(e) Bralorne’s directors shall have tendered their resignations.
(f) Vendor and Purchaser shall have entered into a shareholders agreement that is not a "unanimous shareholders agreement" pursuant to the Business Corporations Act (British Columbia), that will: (i) specify the size of Bralorne's board of directors and provide that Purchaser, as the holder of all of the outstanding common shares of Bralorne, will be entitled to nominate all of the directors of Bralorne; and (ii) provide that any matters requiring shareholder approval while Vendor holds Class A Shares must be approved by a special resolution of all shareholders, which shareholders agreement shall be in the form attached hereto as Schedule 6.2.2(f).
(g) Vendor shall deliver, or cause Bralorne to deliver, as the case may be, to the Purchaser, among other documents, all in form and substance acceptable to the Purchaser:
(i) the Books and Records of Bralorne within its possession or control;
(ii) the Company's interest in share certificates (duly endorsed for transfer to the Facilities Purchaser or, as the Purchaser may direct, the Purchaser’s nominee) representing the Purchased Shares and shall be leased as a whole or in undivided part and cause Bralorne to register the term of such leasehold or the term of any extension or extensions thereof at the option transfer of the Company shall extend beyond the maturity date of the Bonds or shares;
(iii) a certificate of incumbency with respect to the Company's interest Vendor;
(iv) evidence satisfactory to Purchaser of the discharge of the Samsung Security Interest;
(v) evidence satisfactory to Purchaser that Bralorne has sufficient cash on hand on the Closing Date to at a minimum satisfy the FT Expenses;
(vi) evidence satisfactory to the Purchaser that the requirements of Section 4.1(o) have been satisfied in its sole discretion;
(vii) evidence satisfactory to the Purchaser that the requirements of Section 4.1(p) have been satisfied in its sole discretion;
(viii) a certificate of good standing or equivalent with respect to Bralorne;
(ix) a mutual release between the directors and officers, on the one hand, and Bralorne, on the other hand, with effect from the Time of Closing, of those claims by and against Bralorne, as applicable, in the Facilities shall be soldform satisfactory to Purchaser;
(x) a mutual release between Vendor and Bralorne with effect from the Time of Closing of those claims by and against Bralorne, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event form satisfactory to Purchaser;
(xi) a certificate executed by a senior officer of Vendor confirming that the assignee, lessee, purchaser or other transferee shall assume the obligations (A) all representations and warranties of the Company under Section 5.01 hereof for the remaining term of Vendor in this Agreement, Agreement are true and correct in all material respects to the extent of such assignment, lease, sale, transfer not qualified by materiality or other disposition, the Company shall be released from material adverse effect and discharged of in all liability in respect of such obligations respects to the extent so assumed qualified by materiality or material adverse effect as of the Closing Date as if made on and as of such date (but only to such extentexcept for representations and warranties made as of a specified date, the accuracy of which shall be determined as of that specified date); provided, however, that (B) all covenants to be performed by the release Vendor or Bralorne by the Closing Date as contained in this Agreement have been performed in all material respects and discharge each of the Company pursuant to clause Vendor and Bralorne, as the case may be, has complied in all material respects with its covenants in this Agreement; and (bC) shall be conditioned upon as of the delivery by Closing Time, Bralorne has no outstanding indebtedness or any liabilities or obligations (whether accrued, absolute, contingent or otherwise, matured or unmatured, including under any guarantee of any debt) other than Reclamation and Rehabilitation Costs and the Company royalties set out in Schedule 1.1(uu) of the Disclosure Letter;
(xii) an opinion of Vendor’s legal counsel addressed to the Authority Purchaser as to certain legal matters relating to Vendor and Bralorne, including corporate existence, authorization and enforceability relating to the transactions contemplated hereby, the authorized and issued share capital of Bralorne and the Trustee shareholders of a certificate Bralorne as at the Time of an Independent Expert (as hereinafter defined) describing Closing and the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed transfer of by the Company Purchased Shares to the same Person Purchaser, free and clear of any and all Encumbrances, in form and substance satisfactory to the same or a related transactionPurchaser and its counsel, stating acting reasonably, and which is consistent in all material respects with the draft of such opinion that such rights, interests, assets and/or properties so described constitute facilities has been provided to the Purchaser and its counsel prior to the execution this Agreement; and
(xiii) the Pro Forma Balance Sheet.
(h) Vendor executing and delivering in favour of Purchaser the Investor Rights Agreement.
(i) Vendor and Bralorne shall have completed the reorganization set out in Schedule 6.2.2(i) of the Disclosure Letter.
6.2.3 The conditions precedent set out in Section 6.2.1 (except for the generationRegulatory Approvals required to be obtained in Sections 6.2.1(c) and 6.2.1(d), transmission and/or distribution which are provided for the mutual benefit of electric energy the Purchaser and stating thatVendor) are inserted for the sole benefit of Vendor and the conditions precedent set out in Section 6.2.2 (except for the Regulatory Approvals required to be obtained in Sections 6.2.2(b) and 6.2.2(c), in which are provided for the opinion mutual benefit of the Purchaser and Vendor) are inserted for the sole benefit of the Purchaser. Either of the Purchaser or the Vendor may refuse to proceed with the closing of the purchase and sale of the Purchased Shares if the conditions precedent inserted for its benefit are not fulfilled to its reasonable satisfaction prior to the Closing Date and it shall incur no liability to any other party by reason of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company refusal.
6.2.4 The foregoing conditions precedent may again assume such obligations under Section 5.01 hereof, be waived in whole or in part, at any time and from time to time, and, to part by the extent party for whose benefit they are inserted in that party’s absolute discretion. No such waiver shall be of any such assumption effect unless it is in writing signed by the Company (but only to such extent), Party granting the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:waiver.
Appears in 2 contracts
Sources: Share Purchase Agreement (Avino Silver & Gold Mines LTD), Share Purchase Agreement
Conditions. The Notwithstanding the foregoing, no Holder shall be required to comply with Section 10(b) in connection with any proposed Company Sale unless:
(i) such Holder shall not be required to make any representation, warranty or covenant or provide any indemnity that is not substantially similar to the representations, warranties and covenants made or indemnities provided by all Holders (provided that no Holder shall be required to make any representations, warranties or covenants or provide indemnities as to any other Holders);
(ii) such Holder shall not be liable for the inaccuracy or breach of any representation, warranty or covenant by any other Person not Affiliated with or an agent of such Holder (other than the Company's interest , subject to clause (iii) below) in this Agreement may connection with the Drag-Along Sale;
(iii) the liability for indemnification, if any, of such Holder in such Company Sale shall be assigned as a whole or in partseveral, and its interest in the Facilities may be leasednot joint or joint and several, soldwith any other Person (provided that indemnification to cover breaches of representations, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee warranties and the Authority, all other obligations covenants of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and any other special indemnities provided by the Company shall be released borne pro rata in proportion to, and not to exceed, the amount of consideration paid to such Holder in connection with such Drag-Along Sale) and discharged from shall in no event exceed the actual proceeds received by such obligations Holder in the Drag-Along Sale (except in the case of fraud or intentional misrepresentation by such Holder);
(iv) no Holder shall be required to sign a covenant not to compete or any similar restrictive covenants;
(v) upon the consummation of the Drag-Along Sale, each Holder will receive the same form and amount of consideration for such Holder’s Shares as is received by other Holders in respect of their Shares of such same class or series of Company capital stock; provided that the form of consideration for the Drag-Along Sale shall be payable or deliverable solely in cash or freely tradeable securities; and
(vi) subject to clause (v) above, requiring the same form of consideration to be available to the extent so assumedholders of any single class or series of Company capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received upon the consummation of the Drag-Along Sale, all holders of such Company capital stock will be given the same option, subject to compliance with applicable securities Laws. Notwithstanding the foregoing, (a) if (i) foregoing or anything to the Company's interest contrary in this Agreement shall be assigned as a whole or in undivided partAgreement, (ii) the Company's interest in the Facilities shall be leased as event that all or a whole or portion of the consideration payable to any Holder in undivided part connection with such Drag-Along Sale consists of securities and the term exchange or sale of such leasehold securities to any Holder would require either a registration under the Securities Act or the term preparation of a disclosure document pursuant to Regulation D under the Securities Act (or any successor regulation) or a similar provision of any extension or extensions thereof state securities Law, then, at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest Parent, such Holders may receive, in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent lieu of such assignment, lease, sale, transfer or other dispositionsecurities, the Company shall be released from and discharged of all liability in respect fair market value of such obligations to the extent so assumed (but only to such extent); providedsecurities in cash, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery as determined in good faith by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Board.
Appears in 2 contracts
Sources: Stockholders Agreement (Harley-Davidson, Inc.), Stockholders Agreement (Harley-Davidson, Inc.)
Conditions. 4.1 Conditions to the Obligations of Investor The Company's interest in obligations of Investor to complete the transactions contemplated by this Agreement are subject to the satisfaction, prior to the Closing Date, of the following conditions. The parties acknowledge and agree that each of the following conditions is included for the exclusive benefit of Investor and may be assigned as a whole or waived by Investor in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), without prejudice to its right to rely on any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition conditions:
(a) the representations and warranties of the Corporation set out in the Convertible Debentures shall relieve be true and correct in all material respects on the Company from its primary liability Closing Date and the Corporation shall have delivered to Investor at the Time of Closing certificates dated the Closing Date, duly executed by the senior officers of the Corporation reasonably acceptable to Investor, to such effect. The receipt of such certificates and the closing of the transactions contemplated by this Agreement shall not be nor be deemed to be a waiver of the representations and warranties contained in the Convertible Debentures, which representations and warranties shall continue in full force and effect for its obligations under Section 5.01 hereof or the benefit of Investor as provided in the Convertible Debentures;
(b) all of the terms, covenants, obligations and conditions of this Agreement and the Convertible Debentures to be complied with or performed by the Corporation on or before the Closing Date shall have been complied with or performed in all material respects, and the Corporation shall have delivered to Investor at the Closing certificates dated the Closing Date, duly executed by the senior officers of the Corporation reasonably acceptable to Investor, to such effect;
(c) no action, suit or proceeding shall be made unless pending or threatened by any Authority or any other Person to restrain or prohibit the assigneecompletion of the 7 - 7 - transactions contemplated by this Agreement or to prevent or restrain the Corporation, lesseein any material respect, purchaser or from carrying on its business as presently carried on;
(d) all actions, proceedings, instruments, documents and all other transfereelegal matters relating to the subscriptions contemplated by this Agreement shall have been approved as to form and legality to the satisfaction of Investor's outside counsel, as acting reasonably, and all instruments and documents to be delivered by the case may be, Corporation pursuant to this Agreement prior to or simultaneously with such assignment, lease, sale, transfer on the Closing Date shall have been delivered prior to or other disposition, assumes, by delivery on the Closing Date; without limiting the generality of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, the Corporation shall duly authorize the execution and delivery of the Convertible Debentures and the performance of its obligations thereunder and provide documentation evidencing same to Investor, and, without notice or any action by Investor, the Corporation shall prepare and file, as required, any amendments to its constating documents and by-laws necessitated by the execution and delivery of the Convertible Debentures and the performance of the Corporation's obligations thereunder;
(ae) if there shall have been no change, which has had or could reasonably be expected to have, a Material Adverse Effect (as defined in the Convertible Debentures) since the date of the Audited Financial Statements (as defined in the Convertible Debentures);
(f) the Board of Directors of the Corporation shall have approved the terms of this Agreement and the consummation of the transactions contemplated hereby, including to an extent and in a manner sufficient to render inapplicable to the transactions contemplated by this Agreement the provisions of Section 203 of the General Corporation Law of the State of Delaware;
(g) the Corporation shall have delivered to Investor at the Closing Date an opinion of the Corporation's outside counsel as to such matters as are reasonably requested by Investor's outside counsel, all reasonably satisfactory in form, substance and scope to Investor's outside counsel;
(h) the Corporation and Investor shall have executed and delivered the Amended Registration Rights Agreement (as defined in the Convertible Debentures) on the 8 - 8 - terms contemplated by the Convertible Debentures and in a form reasonably satisfactory to Investor's outside counsel, and when delivered hereunder such Registration Rights Agreement will be a legal, valid, binding and enforceable obligation of the Corporation except as the same may be limited by creditors rights laws and general principles of equity;
(i) the CompanyCorporation shall have filed and delivered to the American Stock Exchange ("AMEX") an additional listing application (with respect to all common shares into which any of the Convertible Debentures may be converted) in a form and on terms reasonably satisfactory in form, substance and scope to Investor's interest outside counsel, and shall use its best efforts to ensure that such common shares become listed on AMEX;
(j) the Corporation shall have obtained all waivers, consents and other Approvals of all Authorities and other third Persons (including consent by NHP (such consent and all documentation executed in connection therewith to be in form and substance reasonably satisfactory to Investor and its outside counsel) to the "change in control" (as defined in the NHP Lease) caused by execution of the Convertible Debentures and the completion of the transactions contemplated thereby) required to complete the transactions contemplated by this Agreement (and shall be assigned as a whole or have provided evidence in undivided partform and substance satisfactory to Investor, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, howeveracting reasonably, that the release all such waivers, consents and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extentApprovals have been obtained), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 2 contracts
Sources: Purchase Agreement (Balanced Care Corp), Purchase Agreement (Balanced Care Corp)
Conditions. (A) The Company's interest in obligations of the Purchaser under this Agreement are conditional in all respects upon:
(i) the Purchaser's registration statement (No. 333-95623) filed with the US Securities and Exchange Commission having been declared effective, the IPO Price having exceeded USD 10 per share, the receipt of the net proceeds of the IPO by the Purchaser and the listing of the shares of the Purchaser on the NASDAQ National Market;
(ii) the Investor Parties having each complied fully with its obligations in Clause 9 and the Investor Parties having delivered to the Purchaser a certificate in form and substance satisfactory to the Purchaser, who shall act reasonably, and duly executed by the Investor Parties confirming that, if such be the case, the Investor Parties have each complied fully with its obligations in Clause 9;
(iii) no order or judgement of any court or governmental, statutory or regulatory body having been issued or made prior to Completion, which has the effect of making unlawful or otherwise prohibiting the purchase of the Company by the Purchaser;
(iv) the receipt of a letter in the Agreed Form from BOS indicating that it does not intend to exercise any rights that may be assigned triggered by the transactions contemplated by this Agreement pursuant to a term loan agreement and a working capital letter and documentation relating thereto each dated 27 May, 1999(the "BOS Facilities") notwithstanding Completion and confirming that the BOS Facilities will remain in full force and effect notwithstanding Completion, in all respects on their existing terms;
(v) the Warranties being accurate and not misleading as at the date of this Agreement by reference to the fact and circumstances in existence at the date of this Agreement;
(vi) the Warranties continuing to be accurate in all material respects and not misleading in any material way up to and including the Completion Date and the Warranties being materially accurate and not misleading in any material way when repeated immediately before Completion by reference to the facts and circumstances subsisting at that time and the Obligors (on behalf of themselves) and the Natwest Parties and BOS (on behalf of themselves solely in relation to the Warranties in paragraphs 1 and 2 of Schedule 3) having delivered a whole or certificate in partform and substance satisfactory to the Purchaser, who shall act reasonably, and its interest duly executed by the Obligors and the NatWest Parties and BOS confirming that, if such be the case, the applicable Warranties were accurate and not misleading as at the date of this Agreement and that they have continued to be and are materially accurate and not misleading in any material way;
(vii) no change which in the Facilities may be leasedPurchaser's reasonable opinion affects adversely the business or assets or condition or the financial or trading position or prospects of any member of the Group in any material way having occurred before the time of Completion;
(viii) the Investor Parties having delivered a certificate in a form and substance satisfactory to the Purchaser, soldwho shall act reasonably, transferred or otherwise disposed confirming that the Company and/or any other relevant member of the Group has served all notices and obtained all consents necessitated by the transactions contemplated by this Agreement in relation to the Assumed Liabilities;
(ix) the receipt by the Purchaser of a certificate from the Investor Parties confirming that they have complied with all of their obligations under the Investment Agreement and have no claims against the Company as a (in respect of the Investor Parties other than the Managers)or the Managers under the Investment Agreement and, on payment of the Investor Loans Amount and the April Interest, no amounts will remain outstanding from any member of the Group to the Investor Parties;
(x) the receipt by the Purchaser of confirmation from the Company that Mr P ▇▇▇▇▇▇▇ has paid up all amounts currently outstanding on his Shares and confirmation from ▇▇▇▇▇▇▇ Limited that it has released its equitable charge over the B Shares of ▇▇▇▇ ▇▇▇▇▇▇▇▇;
(xi) the Purchaser having received all necessary approvals in respect of its existing financing facilities in relation to the transactions contemplated by this Agreement.
(B) Each of the Investor Parties, BOS and the Purchaser shall (to the extent that it is within their ability to do so) use their respective reasonable endeavours to fulfil or procure the fulfilment of the conditions set out in sub-clause (A) above and will notify the other parties immediately upon the satisfaction of such conditions.
(C) The Purchaser may waive in whole or in part (whether an interest in a specific element all or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder conditions set out in sub-clause (A). For the avoidance of doubt, the Investor Parties and BOS expressly acknowledge that the Purchaser has sole and absolute discretion to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if decide:
(i) whether or not to consummate, postpone or abandon the Company's interest in this Agreement shall be assigned as a whole or in undivided part, IPO; and
(ii) the Company's interest IPO Price, and the Purchaser shall have no liability to any Investor Party or BOS arising from, relating to, or in connection with any such decision (save as stated in sub-clause 3(G)).
(D) If the conditions set out in sub-clause (A) are not fulfilled (notwithstanding the required reasonable endeavours in sub-clause (B)) or waived by the Purchaser on or before the Termination Date, then the Purchaser shall be entitled to treat this Agreement as terminated by written notice to the Investor Parties and BOS.
(E) If an event or series of events occurs or first becomes known to the Company after the date hereof but prior to Completion which is reasonably likely to result in the Facilities Adjusted Enterprise Value being less than GBP 47,800,000 then NWEP, on behalf of the Investor Parties and BOS, may give written notice to the Purchaser (such notice to be sent by fax and by same day courier) giving reasons for such belief and delivered to the Purchaser no later than three Business Days before Completion. Unless the Purchaser responds to such notice within two Business Days of receipt, indicating that it wishes to proceed to Completion, this Agreement shall terminate automatically three Business Days after service of such notice by NWEP. If the Purchaser elects to proceed to Completion in accordance with this sub-clause, the Adjustment Amount shall be leased as a whole or in undivided part capped at GBP 5,000,000. NWEP (on behalf of the Investor Parties and BOS), undertakes to notify the term of such leasehold or the term Purchaser immediately on its becoming aware of any extension or extensions thereof at circumstance which would cause it to serve a notice pursuant to this sub-clause (E).
(F) If the option of the Company shall extend beyond the maturity date of the Bonds or Agreement is terminated then, subject to sub-clauses (iiiG) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assigneeH), lessee, purchaser or other transferee shall assume the obligations of each party under this Agreement shall automatically terminate PROVIDED that the Company under Section 5.01 hereof for rights and liabilities of the remaining term of this Agreement, parties which have accrued prior to termination shall subsist.
(G) If the Agreement is terminated due to the extent non-fulfilment of such assignment, lease, sale, transfer or other dispositionthe condition in sub-clause (A)(i) above, the Company shall be released from and discharged of all liability in respect of such obligations Purchaser will pay to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than Sellers an amount equal to 10/7 50% of the sum reasonable out of (x) pocket expenses incurred by the aggregate principal Sellers in relation to this Agreement up to a maximum amount of GBP 100,000.
(H) The Investor Parties and BOS acknowledge that the Bonds then Outstanding restrictions contained in Clauses 18 and (y) 19 shall continue to apply after the outstanding principal amount of all other obligations termination of the Company representing indebtedness for borrowed money or for the deferred sale and purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of Shares under this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:without limit in time.
Appears in 2 contracts
Sources: Share Purchase Agreement (Ddi Corp), Share Purchase Agreement (Ddi Corp)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve In addition to being subject to the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless satisfaction of the assigneeconditions contained in Sections 6.01 and 6.02, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery obligation of an instrument in writing satisfactory in form Issuing Bank to issue any Letter of Credit is subject to the Trustee and the Authority, all other obligations satisfaction in full of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following conditions:
(i) the Company's interest Borrower shall have delivered to the applicable Issuing Bank (with a copy to the Administrative Agent) an L/C Application in this Agreement the manner prescribed in Section 4.04, and the proposed Letter of Credit shall be assigned reasonably satisfactory to such Issuing Bank as a whole or in undivided part, to form and content; and
(ii) as of the Company's interest in date of issuance, no order, judgment or decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin or restrain the Facilities applicable Issuing Bank from issuing such Letter of Credit and no law, rule or regulation applicable to such Issuing Bank and no request or directive (whether or not having the force of law) from a Governmental Authority with jurisdiction over such Issuing Bank shall be leased as a whole prohibit or in undivided part and request that such Issuing Bank refrain from the term issuance of such leasehold Letters of Credit generally or the term issuance of that Letter of Credit or shall impose upon the Issuing Bank with respect to any extension Letter of Credit any restriction or extensions thereof at reserve or capital requirement (for which the option Issuing Bank is not otherwise compensated) or any unreimbursed loss, cost or expense which was not applicable, in effect and known to the Issuing Bank as of the Company shall extend beyond the maturity date of this Agreement and which the Bonds or (iii) the Company's interest Issuing Bank in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and good ▇▇▇▇▇ ▇▇▇▇▇ material to it.
(b) in No Issuing Bank shall extend, renew, or amend any Letter of Credit unless the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term requirements of this Agreement, to the extent Section 4.03 are met as though a new Letter of such assignment, lease, sale, transfer or other disposition, the Company shall be released from Credit were then being requested and discharged of all liability in respect of such obligations to the extent so assumed issued.
(but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (bc) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything Notwithstanding anything herein to the contrary notwithstandingcontrary, the Company no Issuing Bank shall have an obligation hereunder to issue, and shall not make issue, any assignmentLetter of Credit the proceeds of which would be made available to any Person (i) to fund any activity or business of or with any Sanctioned Person or any activity or business in any Sanctioned Country, lease in each case, in violation of applicable Sanctions or sale as provided (ii) in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect any manner that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition would result in a violation of any element or unit of the Facilities, or Sanctions by any interest therein, the Company may, at its option, cause such element or unit, or interest therein, party to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 2 contracts
Sources: Credit Agreement (Baxter International Inc), Credit Agreement (Baxalta Inc)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in partobligation of Seller, on one hand, and its interest in Purchaser, on the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest)other hand, to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition consummate the transaction contemplated hereunder is contingent upon the following:
(a) Each party’s representations and warranties contained herein shall relieve be true and correct in all material respects as of the Company from date of this Agreement and the Closing Date;
(b) As of the Closing Date, each party shall have performed its primary liability obligations hereunder and all deliveries made at Closing shall be tendered;
(c) No actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings, pending or threatened against the other party that would materially and adversely affect the other party’s ability to perform its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as exist;
(d) No pending or threatened action, suit or proceeding with respect to the other party before or by any court or administrative agency which seeks to restrain or prohibit, or to obtain damages or a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold discovery order with respect to this Agreement or the term of any extension or extensions thereof at the option consummation of the Company transaction contemplated hereby shall extend beyond exist; and
(e) Seller will pursue the maturity date eviction of all tenants on subject property (if any) and no leases shall survive the Closing (if any). So long as neither party is not in default hereunder, if any condition to a party’s obligations to proceed with the Closing hereunder has not been satisfied as of the Bonds or (iii) the Company's interest in the Facilities shall be soldClosing Date, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating thatparty may, in the opinion of such Independent Expertits sole discretion, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of terminate this Agreement by delivering written notice to the Authority and other party on or before the Trustee Closing Date. Or, such party may elect to close, not withstanding the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that non-satisfaction of such element or unitcondition, or interest therein, in which event such party shall no longer be deemed to have waived any such condition. There shall be no liability on the part of the Facilities other party hereto for breaches of representations and warranties of which the purposes party electing to close had knowledge as of this Agreementthe Closing. For purposes Nothing in the foregoing shall relieve a party from any liability it would otherwise have if the failure of this Section 7.01:such party to satisfy a condition also constitutes a default by such party hereunder.
Appears in 2 contracts
Sources: Purchase and Sales Agreement (Notes Live, Inc.), Purchase and Sale Agreement (Fresh Vine Wine, Inc.)
Conditions. Section 6.1 Conditions to Each Party’s Obligation To Effect the Merger. The Company's interest in this Agreement respective obligation of each party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions (any or all of which may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of waived by the Company as a whole or parties hereto in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereofwriting, in whole or in part, to the extent permitted by applicable Law):
(i) This Agreement shall have been adopted and approved by the Company Required Vote and (ii) the Parent Proposal shall have been approved and adopted by the Required Parent Vote;
(b) No statute, rule, order, decree or regulation shall have been enacted or promulgated, and no action shall have been taken, by any Governmental Entity of competent jurisdiction which temporarily, preliminarily or permanently restrains, precludes, enjoins or otherwise prohibits the consummation of the Merger or makes the Merger illegal;
(c) Other than filing the Certificate of Merger in accordance with the DGCL, all authorizations, consents and approvals of all Governmental Entities required to be obtained prior to consummation of the Merger shall have been obtained, except for such authorizations, consents, and approvals the failure of which to be obtained individually or in the aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on any party to this Agreement;
(d) The S-4 shall have been declared effective, and no stop order suspending the effectiveness of the S-4 shall be in effect and no proceedings for such purpose shall be pending before or threatened by the SEC; and
(e) The shares of Parent Common Stock issuable to the stockholders of the Company in the Merger and to the holders of the Company Options, Company Stock Awards, and Performance Stock Awards shall have been authorized for listing on Nasdaq, subject to official notice of issuance.
Section 6.2 Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of Parent set forth in Sections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.27 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of each of Parent set forth in this Agreement (other than the representations and warranties set forth in Sections 4.2, 4.3, 4.5(a) and all statements set forth in Section 4.27 (relating to Taxes)), shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so 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 be reasonably likely to have or result in, a Material Adverse Effect on Parent. The Company shall have received a certificate signed on behalf of Parent by each of two senior executive officers of Parent to the foregoing effect;
(b) Parent shall have performed in all material respects its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and the Company shall have received a certificate signed on behalf of Parent by the Chief Executive Officer or Chief Financial Officer of Parent to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) The Company shall have received the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Company, in form and substance reasonably satisfactory to the Company, on the date on which the S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the certificates obtained from time officers of Parent and the Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed and the Effective Time, as applicable, to timethe effect that (i) the Merger will qualify as a reorganization within the meaning of Section 368(a) of the Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.2(d), ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP shall have received and may rely upon the certificates and representations referred to in Section 5.13(d);
(e) Parent must have delivered to its counsel, the Company and the Company’s counsel a certificate signed on behalf of Parent by a duly authorized officer of Parent certifying the representations set forth in Section 4.27 and as otherwise reasonably requested by the Company’s or Parent’s tax counsel;
(f) During the period from the date of execution of this Agreement until the Effective Time, there shall not have occurred a Material Adverse Effect on Parent;
(g) On a pro forma basis and after giving effect to all transactions contemplated by this Agreement to occur on the Closing Date, (i) Parent must have funds equal to at least the amount set forth on Section 6.2(g)(i) of the Parent Disclosure Letter available for borrowing under all tests and all provisions set forth in its credit agreements, as in effect on the Closing Date, (ii) no default or event of default would exist under such credit agreements of Parent, and (iii) additional debt in an amount equal to at least the amount set forth on Section 6.2(g)(iii) of the Parent Disclosure Letter would not result in a default or event of default under such credit agreements of Parent and the Company shall have received a certificate of Parent signed on its behalf by its Chief Executive Officer or Chief Financial Officer to such effect; and
(h) To the extent that any notes remain outstanding under the Parent Indenture, Parent shall have complied with all the applicable provisions of the Parent’s Indenture so that on a pro forma basis and after giving effect to all transactions contemplated by this Agreement, no default or event of default will have occurred under the Parent Indenture, and the Company shall have received a certificate of Parent signed on its behalf by its Chief Executive Officer or Chief Financial Officer to such effect. In addition, on a pro forma basis and after giving effect to all transactions contemplated by this Agreement, no default or event of default will have occurred under the Company Indenture (excluding any defaults or events of default in existence under the Company Indenture immediately prior to the Effective Time); provided that, to the extent of any such assumption by notes remain outstanding under the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstandingIndenture, the Company shall have complied with all the applicable provisions of the Company’s Indenture prior to the Effective Time, such that the Company’s failure to comply with the applicable provisions of the Company’s Indenture shall not make have caused the default or event of default occurring on a pro forma basis and after giving effect to all transactions contemplated by this Agreement.
Section 6.3 Conditions to Obligations of Parent to Effect the Merger. The obligations of Parent to effect the Merger are further subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions:
(a) (i) The representations and warranties of the Company set forth in Sections 3.2, 3.3 and 3.5(a) and all statements set forth in Section 3.26 (relating to Taxes) shall be true and correct in all material respects both at and as of the date of this Agreement and at and as of the Closing Date, as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date); and (ii) the representations and warranties of the Company set forth in this Agreement (other than the representations and warranties set forth in Sections 3.2, 3.3 and 3.5(a) and the statements set forth in Section 3.26) shall be true and correct (without giving effect to any assignmentlimitation as to “materiality” or “Material Adverse Effect” set forth therein) both at and as of the date of this Agreement and at and as of the Closing Date, lease as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to “materiality” or sale as provided “Material Adverse Effect” set forth therein) individually or in the immediately preceding paragraph unless it aggregate has not had, and would not be reasonably likely to have or result in, a Material Adverse Effect on the Company. Parent shall have furnished received a certificate signed on behalf of the Company by each of two senior executive officers of the Company to the Authority foregoing effect;
(b) The Company shall have performed in all material respects each of its obligations under this Agreement required to be performed by it at or prior to the Effective Time pursuant to the terms of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer to such effect;
(c) There shall not be pending any suit, action or proceeding by any Governmental Entity seeking to (i) prohibit or limit in any material respect the ownership or operation by the Company or Parent or any of their respective affiliates of a substantial portion of the business or assets of the Company and its Subsidiaries, taken as a whole, or to require any such Person to dispose of or hold separate any material portion of the business or assets of the Company and its Subsidiaries, taken as a whole, as a result of the Merger or any of the other transactions contemplated by this Agreement or (ii) restrain, preclude, enjoin or prohibit the Merger or any of the other transactions contemplated by this Agreement;
(d) Parent shall have received the opinion of ▇▇▇▇▇▇▇▇ & Knight, LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the date on which the S-4 is filed and on the Closing Date, in each case dated as of such respective date, rendered on the basis of facts, representations and assumptions set forth in such opinion and the Trustee an opinion certificates obtained from officers of Bond Counsel Parent and the Company, all of which are consistent with the state of facts existing as of the date on which the S-4 is filed or the Effective Time, as applicable, to the effect that (i) the proposed assignment, lease or sale Merger will not impair qualify as a reorganization within the validity under the Act meaning of Section 368(a) of the Bonds Code and (ii) the Company and Parent will each be a “party to the reorganization” within the meaning of Section 368 of the Code. In rendering the opinion described in this Section 6.3(d), ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, shall have received and may rely upon the affiliate letters, certificates and representations referred to in Section 5.13(d);
(e) The number of Dissenting Shares shall not adversely affect exceed 10% of the exclusion outstanding shares of interest Company Common Stock;
(f) All material consents and approvals of any Person that the Company or Parent or any of their respective Subsidiaries is required to obtain in connection with the consummation of the Merger, including consents and approvals from parties to loans, contracts, leases or other agreements, shall have been obtained, and a copy of each such consent and approval shall have been provided to Parent at or prior to the Closing, except for such consents and approvals the failure of which to be obtained individually or in the aggregate would not be reasonably likely to have or result in a Material Adverse Effect on the Bonds from gross income for federal tax purposes. After any leaseCompany or Parent, saleas applicable;
(g) The Company must have delivered to its counsel, transfer or other disposition of any element or unit Parent and Parent’s counsel a certificate signed on behalf of the Facilities, or any interest therein, Company by a duly authorized officer of the Company may, at its option, cause such element certifying the representations set forth in Section 3.26 and as otherwise reasonably requested by the Company’s or unit, or interest therein, to no longer be deemed to be part Parent’s tax counsel; and
(h) During the period from the date of the Facilities for the purposes execution of this Agreement by delivering to until the Authority and Effective Time, there shall not have occurred a Material Adverse Effect on the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (KCS Energy Inc), Agreement and Plan of Merger (Petrohawk Energy Corp)
Conditions. At Closing, the Company shall deliver to Merr▇▇▇ ▇▇▇c▇ ▇▇▇ or more stock certificates registered in the name of MLI representing the number of Purchase Shares set forth in Section 2 above. 2 The Company's interest in this Agreement obligation to complete the purchase and sale of the Purchase Shares and deliver such stock certificate(s) to Merr▇▇▇ ▇▇▇c▇ ▇▇ the Closing shall be subject to the following conditions, any one or more of which may be assigned as a whole or in part, and its interest in waived by the Facilities may be leased, sold, transferred or otherwise disposed of Company: (i) receipt by the Company as a whole or in part of Federal Funds (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (amutually agreed upon form of payment) shall relieve in the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations full amount of the Company hereunder to purchase price for the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided partPurchase Shares being purchased hereunder, (ii) the Companyaccuracy as of the Closing Date, of the representations and warranties made by Merr▇▇▇ ▇▇▇c▇ ▇▇▇ein and the fulfillment, in all material respects, of those undertakings of Merr▇▇▇ ▇▇▇c▇ ▇▇ be fulfilled prior to the Closing, (iii) execution and delivery of the Swap Agreement, (iv) receipt of an accurate, complete and duly executed original of U.S. Internal Revenue Service Form 1001, certifying that MLI is entitled to receive any payments under this Agreement, the Swap Agreement or as a result of MLI's ownership of Common Shares that may be viewed as interest for U.S. federal income tax purposes without deduction or withholding of U.S. federal income taxes. (v) receipt by the Company of a cross-receipt with respect to the Purchase Shares executed by Merr▇▇▇ ▇▇▇c▇ ▇▇▇ (vi) receipt by the Company of a certificate by an officer or authorized representative of Merr▇▇▇ ▇▇▇c▇ ▇▇ the effect that the representations and warranties of Merr▇▇▇ ▇▇▇c▇ ▇▇▇ forth in Section 5 hereof are true and correct as of the Facilities date of this Agreement and as of the Closing Date. Merr▇▇▇ ▇▇▇▇▇'▇ ▇▇▇igation to accept delivery of such stock certificate(s) and to pay for the Purchase Shares evidenced thereby shall be leased subject to the following conditions, any one or more of which may be waived by Merr▇▇▇ ▇▇▇c▇: (▇) the accuracy, as a whole or in undivided part of the Closing Date, of the representations and warranties made by the Company herein and the term fulfillment, in all material respects, of such leasehold or the term of any extension or extensions thereof at the option those undertakings of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall to be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, fulfilled prior to the extent of such assignmentClosing, lease(ii) receipt by Merr▇▇▇ ▇▇▇c▇ ▇▇ all opinions, sale, transfer or other disposition, the Company shall letters and certificates to be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of delivered by the Company pursuant to clause this Purchase Agreement, (biii) shall be conditioned upon execution and delivery of the Swap Agreement, (iv) the execution and delivery of a guarantee issued by the Company Operating Partnership (the "Guarantee") and (v) receipt by Merr▇▇▇ ▇▇▇c▇ ▇▇ a cross-receipt with respect to the Authority purchase price for the Purchase Shares executed by the Company. The Company has filed with the U.S. Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 333-38071) for the registration of certain preferred shares of beneficial interest, $.01 par value per share, warrants for purchase of Common Shares and Common Shares under the Securities Act of 1933, as amended (the "Securities Act"), and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and offering thereof from time to timetime in accordance with Rule 415 of the rules and regulations of the Commission under the Securities Act (the "1933 Act Regulations"), and, and the Company has filed such amendment or amendments thereto as may have been required prior to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes execution of this Agreement. For purposes Such registration statement, as amended, has been declared effective by the Commission. A prospectus is to be used in connection with the offering and sale of the Shares to MLI pursuant to this Section 7.01:Agreement (the "Prospectus"). Such registration statement and the prospectus constituting a part thereof (including, in each case, any information deemed to be a part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations and any prospectus supplement relating to the offering of the Shares to MLI pursuant to Rule 415 of the 1933 Act Regulations (a "Prospectus Supplement")), as from time to time amended or supplemented pursuant to the Securities Act or otherwise, are hereinafter referred to as the "Registration Statement," and the "Prospectus," respectively (both of which shall include any
Appears in 2 contracts
Sources: Purchase Agreement (Crescent Real Estate Equities Co), Purchase Agreement (Crescent Real Estate Equities Co)
Conditions. The Company's interest in this Agreement may 3.1 Completion of the Subscription shall be assigned as a whole or in part, conditional upon the following conditions having been satisfied:
(a) the passing of an ordinary resolution by the independent shareholders of the Company at the general meeting of the Company for approving the Specific Mandate and its interest in the Facilities may be leased, sold, transferred or otherwise disposed allotment and issue of the New Shares by the Company as a whole or in part accordance with the Applicable Law (whether an interest in a specific element or unit or an undivided interestincluding the GEM Listing Rules), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or ;
(b) shall be made unless the assigneeListing Committee of the Hong Kong Stock Exchange granting approval for the listing of, lesseeand permission to deal in, purchaser or other transferee, as the case may be, prior to or simultaneously with New Shares on the Hong Kong Stock Exchange and such assignment, lease, sale, transfer or other disposition, assumes, by delivery approval and permission remaining in full force and effect;
(c) the passing of an instrument in writing satisfactory in form to ordinary resolution by the Trustee and the Authority, all other obligations shareholders of the Company hereunder to at the extent general meeting of the interest assignedCompany for approving the increase of authorised share capital of the Company to HK$65,000,000 divided into 650,000,000 shares of HK$0.1 each;
(d) all necessary governmental approvals, leasedconsents, soldfilings and reports for the completion of the Subscription having been obtained or duly filed (as applicable) by the Company;
(e) all necessary governmental, transferred shareholders’ and the third parties’ approvals, consents, filings and reports for the completion of the Subscription having been obtained or otherwise disposed ofduly filed (as applicable) by the Subscriber; and
(f) the transactions contemplated by the Acquisition Agreement having become unconditional in accordance with its terms (other than any condition relating to this Agreement having become unconditional).
3.2 The Company shall use all reasonable efforts to achieve satisfaction of the Conditions (a), (b), (c), (d) and (f) as soon as possible before the Long Stop Date, and the Company Subscriber shall be released use all reasonable efforts to achieve satisfaction of the Condition (e) as soon as possible before the Long Stop Date.
3.3 The conditions specified in clause 3.1 above are not capable of being waived by any of the parties hereto.
3.4 In the event that Completion does not take place by the Long Stop Date, the parties shall then consult each other and discharged from such obligations to discuss a later date for the extent so assumed. Notwithstanding satisfaction of the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part Conditions and the term of such leasehold or Completion as the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest parties may agree in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in writing. In the event that the assigneeparties cannot agree to a later date, lessee, purchaser or either party shall be entitled to terminate this Agreement by written notice to the other transferee shall assume the party and this Agreement and all rights and obligations of the Company parties hereunder shall cease and terminate save for accrued rights and obligations of the parties under Section 5.01 hereof for the remaining term of this Agreement.
3.5 Each of the Parties shall, at the request of the relevant governmental authorities referred to in clause 3.1 (the extent Approval Authorities), furnish such information, supply such documents and do all such acts and things as may reasonably be required by such Approval Authorities in connection with the fulfillment of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability Conditions in respect of such obligations party, and each party shall be responsible for its own fees in relation thereto. At the request of a party, the other party shall update such party of the progress of the application for the approvals or consents from the Approval Authorities in relation to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (Subscription as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (soon as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:possible.
Appears in 2 contracts
Sources: Subscription Agreement (BIT Mining LTD), Subscription Agreement
Conditions. Section 8.1 Conditions to Each Party's Obligation to Effect the Merger. The Companyrespective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) This Agreement and the Merger shall have been adopted and approved by the affirmative vote of holders of (i) a majority of the outstanding shares of PZE Common Stock; and (ii) a majority of the outstanding shares of DVN Common Stock and the Northstar Exchangeable Shares voting as a single class with the DVN Special Voting Stock voting for the Northstar Exchangeable Shares as provided in DVN's interest charter.
(b) The waiting period applicable to the consummation of the Merger shall have expired or been terminated under (i) the HSR Act and (ii) any mandatory waiting period under any applicable foreign competition or antitrust law or regulation where the failure to observe such waiting period referred to in this Agreement may be assigned as a whole clause (ii) would have, individually or in partthe aggregate, and its interest in a DVN Material Adverse Effect or a PZE Material Adverse Effect.
(c) None of the Facilities may parties hereto shall be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), subject to any Persondecree, order or injunction of a court of competent jurisdiction, U.S. or foreign, which prohibits the consummation of the Merger; provided, however, that prior to invoking this condition each party agrees to comply with Section 7.5, and with respect to other matters not covered by Section 7.5, to use its commercially reasonable best efforts to have any such decree, order or injunction lifted or vacated; and no such assignmentstatute, leaserule or regulation shall have been enacted by any governmental authority which prohibits or makes unlawful the consummation of the Merger.
(d) The Form S-4 shall have become effective and no stop order with respect thereto shall be in effect.
(e) The shares of Newco Common Stock to be issued pursuant to the Merger shall have been authorized for listing on the NYSE or the AMEX, sale, transfer subject to official notice of issuance.
Section 8.2 Conditions to Obligation of PZE to Effect the Merger. The obligation of PZE to effect the Merger shall be subject to the fulfillment at or other disposition prior to the Closing Date of the following conditions:
(a) DVN shall relieve have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Company from Closing Date and the representations and warranties of DVN and Newco contained in this Agreement and in any document delivered in connection herewith (i) to the extent qualified by DVN Material Adverse Effect or any other materiality qualification shall be true and correct and (ii) to the extent not qualified by DVN Material Adverse Effect or any other materiality qualification shall be true and correct so long as any failures of such representations and warranties to be true and correct, individually or in the aggregate, do not have a DVN Material Adverse Effect, as of the date of this Agreement and as of the Closing Date (except for representations and warranties made as of a specified date, which need be true and correct only as of the specified date), and PZE shall have received a certificate of the DVN, executed on its primary liability for behalf by its obligations under Section 5.01 hereof President or a Vice President of DVN, dated the Closing Date, certifying to such effect.
(b) PZE shall have received the opinion of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., counsel to PZE, in form and substance reasonably satisfactory to PZE, dated the Closing Date, a copy of which shall be made unless the assigneefurnished to DVN, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if effect that (i) the Company's interest in this Agreement shall Merger will be assigned treated for federal income tax purposes as a whole or in undivided part, reorganization within the meaning of section 368(a) of the Code and (ii) no gain or loss will be recognized by PZE or the Company's stockholders of PZE who exchange all of their PZE Common Stock solely for Newco Common Stock pursuant to the Merger (except with respect to cash received in lieu of a fractional share interest in the Facilities Newco Common Stock). In rendering such opinion, such counsel shall be leased entitled to receive and rely upon representations of officers of PZE and DVN as a whole or in undivided part and to such matters as such counsel may reasonably request.
(c) At any time after the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to there shall not have been any event or occurrence, individually or in the extent of aggregate with all such assignment, lease, sale, transfer events or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, howeveroccurrences, that the release and discharge of the Company pursuant have had or is likely to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of have a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:DVN Material Adverse Effect.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Devon Energy Corp /Ok/), Agreement and Plan of Merger (Pennzenergy Co)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other following obligations of the Company hereunder shall be satisfied or fulfilled on or prior to the extent date of each Closing, unless otherwise agreed to in writing by the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, Placement Agent:
(a) if The Company shall have delivered to the Placement Agent, at the Initial Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company and each Subsidiary is incorporated and each other jurisdiction in which the Company and any of the Subsidiaries is qualified to do business as a foreign corporation; (ii) the certificate of incorporation of the Company and each Subsidiary, as currently in effect, certified by the Secretary of State of the state where the Company and each Subsidiary is incorporated; (iii) a certified copy of the filed Certificate of Designation setting forth the designation, preference rights, qualifications, limitations or restrictions of the Preferred Stock; (iv) by-laws of the Company certified by the secretary of the Company; and (v) certified resolutions of the Board of Directors of the Company approving this Agreement, the execution of the Preferred Stock and the Placement Agent Warrants, the registration of the Registerable Securities and the other transactions contemplated by the Preferred Stock.
(b) There shall have occurred no material adverse event affecting the Company or the Subsidiaries or any of their respective businesses, assets, prospects or the Company's interest in securities since the date of this Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the Company or any of the Subsidiaries which (i) seeks to enjoin or otherwise prohibit or restrict the consummation of the transactions contemplated by this Agreement or (ii) if adversely determined, would have a Material Adverse Effect or have a material adverse effect on the Company's securities.
(d) The Company shall be assigned have delivered to the Placement Agent a certificate of its principal executive and financial officers as to the matters set forth in Paragraphs 8(a), (b) and (c) of this Agreement and to the further effect that (i) neither the Company nor any Subsidiary is in default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or other instrument to which it is a whole party, except as disclosed in the Financial Statements or in undivided part, the Memorandum and except where such default has not and will not have a Material Adverse Effect; (ii) the Company's interest representations and warranties contained in this Agreement are true and correct in all respects on such date with the Facilities shall be leased same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's or Subsidiaries' certificates of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Paragraph 8(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a whole breach or in undivided part and default thereof by the term of such leasehold Company or the term any Subsidiary or would cause acceleration of any extension or extensions thereof at the option obligation of the Company shall extend beyond or any Subsidiary, or could adversely affect the maturity date business, operations, financial condition or prospects of the Bonds Company.
(e) The Placement Agent shall have received the opinion of Friedlob ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Tourillott, LLC, counsel for the Company, dated as of the closing date in form and substance reasonably satisfactory to the Placement Agent and its counsel.
(f) The Company shall have prepared and filed or delivered to counsel for filing with the SEC and any states in which such filing is required, a Form D relating to the sale of the Preferred Stock and such other documents and certificates as are required.
(g) Subscriptions for at least the Minimum Amount of Preferred Stock shall have been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate this Agreement and not consummate the transactions contemplated by this Agreement as a result of the failure of the Company to comply with any of its obligations set forth in this Agreement, this Agreement may be terminated by the Placement Agent by written notice to the Company at any time prior to the Initial Closing if, in the Placement Agent's sole judgment, (i) the Company and/or Subsidiaries shall have sustained a loss that is material to the Company or its Subsidiaries, taken as a whole, whether or not insured, by reason of fire, earthquake, flood, accident or other calamity, or from any labor dispute or court or government action, order or decree; (ii) trading in securities on any exchange or system shall have been suspended or limited either generally or specifically with respect to the Company's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities generally or specifically with respect to the Company's interest Common Stock (not in force and effect on the Facilities date of this Agreement; (iv) a banking moratorium shall be sold, transferred have been declared by Federal or otherwise disposed New York State authorities; (v) an outbreak of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser major international hostilities or other transferee national or international calamity shall assume have occurred; (vi) the obligations Congress of the United States or any state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Placement Agent reasonably believes is likely to have a material adverse effect on the business, financial condition or financial statements of the Company under Section 5.01 hereof or the market for the remaining term Preferred Stock; (vii) the Common Stock shall have been delisted from NASDAQ or the Company shall have received notice from NASDAQ advising the Company of its intention to have the Common Stock delisted from NASDAQ, whether conditional or otherwise, or the Company shall fail to meet the requirements for continued listing on NASDAQ; or (viii) there shall have been, in the Placement Agent's judgment, a material decline in the Dow ▇▇▇▇▇ Industrial Index or the market price of the Common Stock at any time subsequent to the date of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 2 contracts
Sources: Preferred Stock Placement Agreement (Williams Controls Inc), Preferred Stock Placement Agreement (Williams Controls Inc)
Conditions. The Company's interest in this Agreement may Your obligation to purchase the Notes on the Closing Date shall be assigned as a whole or in part, and its interest in subject to the Facilities may be leased, sold, transferred or otherwise disposed of performance by the Company as a whole of its agreements hereunder which by the terms hereof are to be performed at or in part (whether an interest in a specific element or unit or an undivided interest), prior to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition the time of delivery of the Notes and to the following further conditions precedent:
(a) Closing Certificates.
(1) Concurrently with the delivery of the Notes on the Closing Date, you shall relieve have received a certificate dated the Company from its primary liability for its obligations under Section 5.01 hereof or (b) Closing Date, signed by a Responsible Officer of the Company, the truth and accuracy of which shall be made unless a condition to your obligation to purchase the assignee, lessee, purchaser or other transferee, as the case may be, prior Notes proposed to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form be sold to you and to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if effect that (i) the Company's interest representations and warranties of the Company set forth in this Agreement shall be assigned as a whole or in undivided partExhibit C hereto are true and correct on and with respect to the Closing Date, (ii) the Company's interest in Company has performed all of its obligations hereunder which are to be performed on or prior to the Facilities shall be leased as a whole or in undivided part Closing Date, and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) no Default or Event of Default has occurred and is continuing; and
(2) You shall have received a certificate dated the Company's interest in Closing Date, signed by an authorized officer of each of the Facilities Existing Subsidiary Guarantors, the truth and accuracy of which shall be sold, transferred or otherwise disposed of as a whole or in undivided part, condition to your obligation to purchase the Notes proposed to be sold to you and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that (i) the proposed assignmentrepresentations and warranties of the Existing Subsidiary Guarantors set forth in the 2002 Subsidiary Note Guaranty are true and correct on and with respect to the Closing Date, lease or sale will not impair the validity (ii) each Existing Subsidiary Guarantor has performed all of its obligations under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed 2002 Subsidiary Note Guaranty which are to be part of the Facilities for the purposes of this Agreement by delivering performed on or prior to the Authority Closing Date, and the Trustee the agreements (iii) no Default or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part Event of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Default has occurred and is continuing.
Appears in 2 contracts
Sources: Note Agreement (Universal Forest Products Inc), Note Agreement (Universal Forest Products Inc)
Conditions. 5.1 Conditions to the Obligations of Parent, the Purchaser and the Company. The Company's interest in this Agreement may be assigned as a whole or in partobligations of Parent, the Purchaser and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole to consummate the Merger are subject to the satisfaction, at or in part (whether an interest in a specific element or unit or an undivided interest)before the Effective Time, to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition of each of the following conditions:
(a) The Purchaser shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form have purchased all Shares duly tendered and not withdrawn pursuant to the Trustee terms of the Offer and subject to the terms thereof; provided that the obligation of the Parent and the Authority, all other obligations Purchaser to effect the Merger shall not be conditioned on the fulfillment of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, condition set forth in this Section 5.1 (a) if the failure of the Purchaser to purchase the Shares pursuant to the Offer shall have constituted a breach of the Offer or of this Agreement.
(ib) The consummation of the Company's interest Merger shall not be precluded by any order, decree or injunction of a court of competent jurisdiction (each party agreeing to use its best efforts to have any such order reversed or injunction lifted), and there shall not have been any action taken or any Law enacted, promulgated or deemed applicable to the Merger by any Governmental Entity that makes consummation of the Merger illegal.
(c) If required by Certificate of Incorporation and By-Laws of the Company and the DGCL, this Agreement shall have been approved and adopted by the affirmative vote of the holders of the requisite number of shares of Common Stock in accordance with the Certificate of Incorporation and By-Laws of the Company and the DGCL.
(▇) ▇▇▇ applicable waiting period under the HSR Act shall have expired or been terminated.
5.2 Conditions to the Obligations of Parent and the Purchaser. The obligations of Parent and the Purchaser to consummate the Merger are subject to the satisfaction, at or before the Effective Time, of the following conditions:
(a) The Company shall have performed all of its material agreements and covenants contained in this Agreement required to be performed on or prior to the Effective Time and the representations and warranties of the Company contained in this Agreement shall be assigned true and correct in all material respects on and as a whole or in undivided part, of (i) the date made and (ii) the Company's interest except in the Facilities shall be leased as case of representations and warranties expressly made solely with reference to a whole or in undivided part particular date, the Effective Time, and Parent and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company Purchaser shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of have received a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed executive officer of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value effect.
(as hereinafter definedb) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the The Company shall not make any assignmenthave received notice from the holder or holders of more than 10% of the outstanding Shares, lease determined on a fully diluted basis, that such holder or sale holders have exercised or intend to exercise its or their appraisal rights under Section 262 of the DGCL.
(c) The 179,656 Shares previously held by the Trust shall have been returned to the Company and canceled, as provided described in the immediately preceding paragraph unless it shall have furnished third recital to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 2 contracts
Sources: Merger Agreement (Cambrex Corp), Merger Agreement (Cambrex Corp)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other The obligations of the Company hereunder to consummate the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in transactions contemplated by this Agreement shall be assigned subject to the fulfillment of the following conditions:
(i) The representations and warranties of each of the Holders set forth in Section 3 hereof shall be true and correct on and as of the Closing date and a whole or in undivided part, certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Holders in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Company or the Holders shall have been obtained in form and substance reasonably satisfactory to the Company's interest in .
(iii) The Holder shall have delivered to the Facilities Company for cancellation its Notes or an affidavit of loss and indemnity.
(b) The obligations of the Holder to consummate the transactions contemplated by this Agreement shall be leased as a whole or in undivided part subject to the fulfillment of the following conditions:
(i) The representations and the term of such leasehold or the term of any extension or extensions thereof at the option warranties of the Company set forth in Section 2 hereof shall extend beyond the maturity date be true and correct on and as of the Bonds Closing date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Company in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Company or the Holders shall have been obtained in form and substance reasonably satisfactory to the Holders.
(iii) The Company shall have caused the Conversion Shares to be approved for listing on the Over the Counter Bulletin Board or any national securities exchange on which the Common Stock is then listed.
(iv) The Holder shall have received a legal opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, counsel to the Company's interest in , addressed to the Facilities shall be sold, transferred or otherwise disposed of Holder dated as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term Closing date covering such matters as is customary of transactions of this Agreement, nature and in form and substance reasonably satisfactory to the extent of such assignment, lease, sale, transfer or other disposition, Holder.
(vi) The Holder shall have delivered to the Company shall be released from for cancellation their Notes or an affidavit of loss and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:indemnity
Appears in 2 contracts
Sources: Debt Conversion Agreement (Execute Sports Inc), Debt Conversion Agreement (Execute Sports Inc)
Conditions. The Company's interest Notwithstanding anything in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by Plan to the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition contrary: (a) shall relieve the Company from its primary liability may, if it shall determine it necessary or desirable for its obligations under Section 5.01 hereof any reason, at the time of award of any Option or the issuance of any shares of Common Stock pursuant to any Option, require the recipient of the Option, as a condition to the receipt thereof or to the receipt of shares of Common Stock issued pursuant thereto, to deliver to the Company a written representation of present intention to acquire the Option or the shares of Common Stock issued pursuant thereto for its, his or her own account for investment and not for distribution; and (b) if at any time the Company further determines, in its sole discretion, that the listing, registration or qualification (or any updating of any such document) of any Option or the shares of Common Stock issuable pursuant thereto is necessary on any securities exchange or under any federal or state securities or blue sky law, or that the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with the award of any Option, the issuance of shares of Common Stock pursuant thereto, or the removal of any restrictions imposed on such shares, such Option shall not be made unless the assignee, lessee, purchaser awarded or other transfereesuch shares of Common Stock shall not be issued or such restrictions shall not be removed, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any time conditions not acceptable to the Company. Notwithstanding any other provision of the Plan, this Agreement or any other agreements entered into pursuant to the Plan, the Company will not be required to issue any shares of Common Stock under this Agreement or the Plan, and a Participant may not sell, assign, transfer or otherwise dispose of shares of Common Stock issued pursuant to any Options granted under this Agreement or the Plan, unless (a) there is in effect with respect to such shares a registration statement under the Securities Act, and any applicable state or foreign securities laws or an exemption from time such registration under the Securities Act and applicable state or foreign securities laws, and (b) there has been obtained any other consent, approval or permit from any other regulatory body which the Administrator, in its sole discretion, deems necessary or advisable. The Company may condition such issuance, sale or transfer upon the receipt of any representations or agreements from the parties involved, and the placement of any legends on certificates representing shares of Common Stock, as may be deemed necessary or advisable by the Company in order to time, and, comply with such securities law or other restrictions. The Administrator may restrict the rights of Participants to the extent necessary to comply with Section 16(b) of the Exchange Act, the Code or any such assumption by other applicable law or regulation. The grant of an Option pursuant to this Agreement or the Plan shall not limit in any way the right or power of the Company (but only to such extent)make adjustments, the aforesaid assigneereclassifications, lesseereorganizations or changes of its capital or business structure or to merge, purchaser exchange or other transferee shall be released from and discharged of consolidate or to dissolve, liquidate, sell or transfer all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements its business or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:assets.
Appears in 2 contracts
Sources: Non Qualified Stock Option Agreement (Global Pari-Mutuel Services, Inc.), Option Agreement (Global Pari-Mutuel Services, Inc.)
Conditions. 10.3.1 The Company's interest indemnities set out in this Agreement may be assigned as a whole or in part, Section 10.1 and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), Section 10.2 shall not apply to any Person; provided, however, that no such assignment, lease, sale, transfer claim or other disposition proceedings:
(a) unless as soon as reasonably practicable following receipt of notice of such claim or proceedings, the Indemnified Person shall relieve have notified the Company from indemnifying Party in writing of it and shall, upon the indemnifying Party’s request and at that indemnifying Party’s cost, have permitted the indemnifying Party to have full care and control of the claim or proceedings using legal representation of its primary liability for its obligations own choosing; or
(b) if the Indemnified Person shall have made any admission in respect of such claim or proceedings or taken any action relating to such claim or proceedings prejudicial to the defence of it without the written consent of the indemnifying Party (such consent not to be unreasonably withheld or delayed), provided that no Indemnified Person shall be deemed to be in breach of this condition by any statement properly made by the Indemnified Person in connection with the operation of the Indemnified Person’s internal complaint procedures, accident reporting procedures, or disciplinary procedures, or where such a statement is required by law.
10.3.2 The indemnifying Party shall, in relation to any claim or proceedings it has assumed care and control of under Section 5.01 hereof 10.3.1(a):
(a) keep the Indemnified Pperson fully informed of the progress of any claim or proceedings;
(b) consult fully with the Indemnified Person on the nature of any defence to be advanced; and
(c) not, without the prior written consent of the Indemnified Person (such consent not to be unreasonably withheld or delayed), enter into any settlement or compromise of such claim or proceedings which: (a) would result in injunctive or other relief being imposed against an Indemnified Person; or (b) does not include as an unconditional term the giving by the claimant to all applicable Indemnified Persons of a release from liability in relation to such claim or proceedings.
10.3.3 Each Party shall be made unless use its reasonable endeavours to inform the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term Party promptly of any extension circumstances that are likely to give rise to a claim or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability proceedings in respect of which it may be entitled to indemnification under Section 10.1 or Section 10.2; and shall keep the other Party reasonably informed of developments in relation to any such obligations claim or proceedings, even where the Party does not intend to make a claim under Section 10.1 or Section 10.2.
10.3.4 Each Party shall give to the extent so assumed (but only to indemnifying Party such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (assistance as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities it may reasonably require for the generation, transmission and/or distribution of electric energy conduct and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent prompt handling of any such assumption by the Company (but only claim or proceedings.
10.3.5 Nothing in Section 10.1 or Section 10.2 shall restrict or limit an Indemnified Person’s general obligation at law to such extent), the aforesaid assignee, lessee, purchaser mitigate a loss it may suffer or other transferee shall be released from and discharged incur as a result of all liability in respect of such obligations. Anything herein an event that gives rise to the contrary notwithstanding, the Company shall not make any assignment, lease a claim under Section 10.1 or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:10.2.
Appears in 2 contracts
Sources: Manufacturing and Clinical Trial Agreement (TEKMIRA PHARMACEUTICALS Corp), Manufacturing and Clinical Trial Agreement (TEKMIRA PHARMACEUTICALS Corp)
Conditions. The Company's interest obligation of Star to make its contributions at Closing to the capital of the Partnership provided for herein shall be subject to the performance by ▇▇▇▇▇ in this Agreement may all material respects of all of the agreements to be assigned as a whole performed by it hereunder on or in partbefore the Closing Date, and its interest the accuracy in all material respects of the Facilities may be leased, sold, transferred or otherwise disposed of by representations in Exhibit B and to the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition following further conditions:
(a) ▇▇▇▇▇ shall relieve have conducted its business operations at the Company from its primary liability for its obligations under Section 5.01 hereof or Theatre Properties in the ordinary course and in the same manner in which the same have heretofore been conducted.
(b) After the date hereof, ▇▇▇▇▇ shall have incurred no expenses or obligations, without the consent of Star, relating to the ▇▇▇▇▇ Undeveloped Theatre Property.
(c) Star shall have received, from counsel to ▇▇▇▇▇, an opinion in the form of Exhibit E.
(d) There shall not be pending or threatened on the Closing Date any action, suit or proceeding, whether administrative or judicial, seeking to enjoin, restrain, prohibit or invalidate the consummation of the transactions contemplated by this Agreement or which may adversely affect the right of the Partnership directly or indirectly to lease, operate or control any or all of the Theatre Properties, nor shall there be in effect on the Closing Date any order, judgment or decree by any court or other governmental body enjoining, restraining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement or subjecting Star or the Partnership to any liability.
(e) Star shall have received a letter from ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇, dated as of the Closing Date, in form and substance reasonably satisfactory to the Star Partner, stating that each of ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ agrees to perform and be bound by the terms of this Agreement applicable to him or her, as if each was a signatory hereto.
(f) Star shall have received owner’s policies of title insurance, in the name of the Partnership at Star’s expense, on American Land Title Association Owner’s Form B (1987), including mechanic’s lien coverage and survey coverage, issued by a reputable title insurance company satisfactory to Star (the “Title Company”), dated the Closing Date in amounts reasonably acceptable to Star and reinsured by reputable title insurance companies (the “Reinsurance Companies”), reasonably satisfactory to Star in amounts reasonably acceptable to Star, which Reinsurance Companies each shall have entered into a direct access agreement with Star, with respect to the Theatre Properties, insuring the Partnership’s leasehold interest in such Theatre Properties, subject only to Permitted Encumbrances (including easements and restrictions of record which do not interfere with the use of any of the Theatre Properties) and to no other exceptions, whether standard, printed or otherwise, and containing non-imputation endorsements and such other affirmative insurance as Star may reasonably request.
(g) Star shall have obtained, at its expense, ALTA surveys reasonably satisfactory to Star, of the Theatre Properties.
(h) ▇▇▇▇▇ shall have delivered to Star the Disclosure Schedules required to be delivered by ▇▇▇▇▇ hereunder and the exceptions to the representations and warranties of ▇▇▇▇▇ set forth in such Disclosure Schedules shall be made unless reasonably acceptable to Star. If Star does not accept any exception set forth in a proposed Disclosure Schedule received from ▇▇▇▇▇, Star shall object to such exception by written notice to ▇▇▇▇▇ within ten (10) days after its receipt of such Disclosure Schedule. If Star does not object to any exception within such period, the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument condition set forth in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company this Section 10.1(i) shall be released of and discharged from waived with respect to such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if exception.
(i) There shall have been obtained any necessary consents to the Company's interest assignment of the Leases to the Partnership, and any necessary waivers of radius restrictions in such Leases.
(j) ▇▇▇▇▇ shall have delivered to Star a letter dated as of the Closing Date, in form and substance reasonably satisfactory to Star, certifying that the conditions specified in this Agreement Section 11.1 have been satisfied (other than any conditions waived in writing by Star).
(k) ▇▇▇▇▇ shall be assigned as a whole or have obtained non-disturbance agreements in undivided partform and substance satisfactory to Star, (ii) from all mortgagees of the Company's interest Theatre Properties included in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Contributed Assets.
Appears in 2 contracts
Sources: Partnership Agreement (LCE AcquisitionSub, Inc.), Partnership Agreement (Loews Mountainside Cinemas, Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve The respective obligations of the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless parties to consummate the assignee, lessee, purchaser or other transferee, as Subject Share Purchase are subject to the case may befulfillment, prior to or simultaneously concurrently with such assignmentthe Closing (as hereinafter defined), lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations each of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following conditions:
(i) Any waiting period applicable to the Company's interest Subject Share Purchase under the HSR Act shall have expired or been terminated; and
(ii) No statute, rule, regulation, order, writ, injunction, judgment or decree shall have been enacted, promulgated, entered or enforced by any federal or state court or other Governmental Authority which has the effect of making illegal, impeding or otherwise restraining or prohibiting the Subject Share Purchase.
(b) The obligations of CREC to purchase and pay for the Aggregate Subject Shares are subject to the fulfillment, prior to or concurrently with the Closing, of each of the conditions set forth in Section 7.2(a) and (b) of the Merger Agreement and to each of the following additional conditions (any one or more of which may be waived, in whole in part, by CREC):
(i) Each of the representations and warranties of the Shareholder Parties contained in this Agreement shall be assigned true and correct in all material respects as a whole or in undivided part, of the Closing Date as if made on such date; and
(ii) The Shareholder Parties shall have performed and complied in all material respects with all provisions, covenants and conditions contained in this Agreement required to be performed or complied with by them prior to or on the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or Closing Date.
(iiic) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the The obligations of the Company under Section 5.01 hereof for Shareholder Parties to sell and deliver the remaining term of this Agreement, Subject Shares are subject to the extent fulfillment, prior to or concurrently with the Closing, of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge each of the Company pursuant to clause following conditions (b) shall any one or more of which may be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereofwaived, in whole or in part, at any time and from time to timeby the Shareholder Parties, and, but only if all Shareholder Parties waive the condition with respect to the extent Aggregate Subject Shares).
(i) Each of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee representations and warranties of CREC contained in this Agreement shall be released from true and discharged correct in all material respects as of all liability in respect of the Closing Date as if made on such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it date; and
(ii) CREC shall have furnished performed and complied in all material respects with all provisions, covenants and conditions contained in this Agreement required to the Authority and the Trustee an opinion of Bond Counsel be performed or complied with by it prior to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Closing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Cavco Industries Inc), Stock Purchase Agreement (Janal LTD Partnership)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other The obligations of the Company hereunder to consummate the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in transactions contemplated by this Agreement shall be assigned subject to the fulfillment of the following conditions:
(i) The representations and warranties of the Holder set forth in Section 3 hereof shall be true and correct on and as of the Closing Date and a whole or in undivided part, certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Holder in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Company or the Holder shall have been obtained in form and substance reasonably satisfactory to the Company's interest .
(iii) The Holder shall have delivered to the Company for cancellation its Note or an affidavit of loss and indemnity.
(iv) all governmental or regulatory authorizations, approvals, including the approval of the TSXV, or permits that are required for the issuance of the Conversion Shares have been obtained
(v) The Company shall have obtained the necessary approvals for the listing of the Common Stock on the NASDAQ Capital Market and shall have consummated a public offering of its securities as described in its Registration Statement on Form S-1, filed with the Facilities SEC on December 21, 2012.
(b) The obligations of the Holder to consummate the transactions contemplated by this Agreement shall be leased as a whole or in undivided part subject to the fulfillment of the following conditions:
(i) The representations and the term of such leasehold or the term of any extension or extensions thereof at the option warranties of the Company set forth in Section 2 hereof shall extend beyond the maturity date be true and correct on and as of the Bonds Closing Date and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Company in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Company or the Holder shall have been obtained in form and substance reasonably satisfactory to the Holder.
(iii) The Company shall have obtained the Company's interest in necessary approvals for the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations listing of the Company under Section 5.01 hereof for Common Stock on the remaining term NASDAQ Capital Market and shall have consummated a public offering of this Agreementits securities as described in its Registration Statement on Form S-1, filed with the SEC on December 21, 2012.
(iv) The Holder shall have delivered to the extent Company for cancellation its Note or an affidavit of such assignment, lease, sale, transfer or other disposition, the Company shall be released from loss and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:indemnity
Appears in 2 contracts
Sources: Debt Conversion Agreement (Vuzix Corp), Debt Conversion Agreement (Vuzix Corp)
Conditions. The Company's interest obligation of the Initial Purchaser to purchase the Notes, under this Agreement is subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) All the representations and warranties contained in this Agreement may and in each of the Documents shall be assigned true and correct as a whole of the date hereof and at the First Closing Date as though then made and, with respect to the Optional Additional Convertible Notes, as of each Option Closing date as though then made. On or prior to the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied in all material respects with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in partthe aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, that would prevent or materially interfere with the consummation of the Offerings or any of the transactions contemplated under the Documents; and its interest no stop order suspending the qualification or exemption from qualification of any of the Notes, in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after due inquiry, be pending or contemplated as of the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, prevent the consummation of the Offerings or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the Facilities may be leasedaggregate, soldadversely affect the issuance or marketability of the Notes and (B) would not, transferred individually or otherwise disposed in the aggregate, have a Material Adverse Effect, except as disclosed in the Final Offering Circulars.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Circulars and the Final Offering Circulars, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the Company as a whole or National Association of Securities Dealers, Inc. relating to trading in part the PORTAL market.
(whether an interest in a specific element or unit or an undivided interest)f) The Underlying Securities shall have been approved for listing on the OTC Bulletin Board, to the extent required, subject only to notice of issuance.
(g) On or after the date hereof, (i) there shall not have occurred any Person; provideddowngrading, howeversuspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such assignmentrating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(h) The Initial Purchaser shall have received on the applicable Closing Date:
(i) certificates dated the First Closing Date and, leasewith respect to the Optional Additional Convertible Notes, saleeach Option Closing Date, transfer signed by (1) the Chief Executive Officer and (2) the principal financial or other disposition accounting officer of the Company, on behalf of the Company, to the effect that (a) shall relieve the Company from its primary liability for its obligations under representations and warranties set forth in Section 5.01 4 hereof or and in each of the Documents, are true and correct in all respects, as of the date hereof and at the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, (b) the Company and each other party to the Documents (other than the Initial Purchaser) have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which failure to satisfy would not, individually or in the aggregate, have a Material Adverse Effect), (c) at First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date or since the date of the most recent financial statements in the Final Offering Circulars (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circulars or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circulars (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circulars or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations of the Company, and there has not been any change in the Capital Stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, executed by the principal financial or accounting officer of the Company substantially in a form reasonably satisfactory to the Initial Purchaser.
(iv) the opinion, dated the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Company substantially in the form attached hereto as Exhibit C.
(v) the opinion, dated the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ L.L.P., counsel to the Company substantially in the form attached hereto as Exhibit D.
(vi) the opinion, dated the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, of Nevada counsel to the Company, substantially in the form attached hereto as Exhibit E.
(vii) the 10b-5 letter, dated the First Closing Date, and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser.
(viii) the opinion, dated the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, of White & Case LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(ix) the “lock-up” agreements, each substantially in the form of Exhibit F-1 hereto, from the persons identified on Exhibit F-2 relating to sales and certain other dispositions of shares of Common Stock or certain other securities shall be in full force and effect on the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date.
(i) The Initial Purchaser shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., independent public accountants under the standards established by the American Institute of Certified Public Accountants, with respect to the Company, (A) customary comfort letters, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Preliminary Offering Circulars, (B) customary comfort letters, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circulars and (C) customary “bring down” comfort letters, dated the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that ▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C. reaffirms the statements made unless in its respective letters furnished pursuant to clause (A) and (B).
(j) On the assigneedate hereof and also at the Closing Date, lesseethe Initial Purchaser shall have received from the principal financial or accounting officer of the Company a certificate in form and substance reasonably satisfactory to the Initial Purchaser as to the accuracy of certain numbers contained or incorporated by reference in the Time of Sale Circulars and the Offering Circulars, purchaser which numbers shall be set forth in a schedule attached to such certificate.
(k) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(l) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offerings or any transaction contemplated in the Documents.
(m) The Initial Purchaser shall have received the Final Offering Circulars, and the terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Circulars.
(n) Prior to the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Associates, the Company’s independent petroleum engineer, shall have furnished to the Initial Purchaser a letter or letters, dated the respective date of delivery thereof, in form and substance satisfactory to the Initial Purchaser.
(o) None of the parties to any of the Documents are in breach or default in any material respect under their respective obligations thereunder.
(p) The Collateral Agents shall have received on the applicable Closing Date:
(i) appropriately completed copies of Uniform Commercial Code UCC-1 financing statements naming each of the Company and the Guarantors as the debtor and the applicable Collateral Agent as the secured party, or other transfereesimilar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agents and their counsel, desirable to perfect the Liens of the Collateral Agents pursuant to each of the Security Agreements;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agents, dated a date reasonably near to the First Closing Date and, with respect to the Optional Additional Convertible Notes, each Option Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) fully executed counterparts of a deed of trust and mortgage (the “Deed of Trust”), in form and substance reasonably satisfactory to Collateral Agents, which Deed of Trust shall cover Baseline’s proved oil and gas reserves, as described in the Final Offering Circulars; and
(v) such other approvals or documents as the Collateral Agents or the Initial Purchaser may reasonably request in form and substance reasonably satisfactory to the Collateral Agents or Initial Purchaser, as the case may be.
(q) The Collateral Agents and their counsel shall be satisfied that, prior to or simultaneously concurrent with such assignmentthe purchase of the Notes hereunder by the Initial Purchaser, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form (A) the Liens granted to the Trustee and Collateral Agents, for the Authority, all other obligations benefit of the Company hereunder Secured Parties (as defined in the Offering Circulars) in the collateral described above is of the priority described in the Final Offering Circulars; and (B) no Lien exists on any of the collateral described above other than the Liens created in favor of the Collateral Agents, for the benefit of the Secured Parties, pursuant to the extent Collateral Agreements, in each case subject to the Permitted Liens.
(r) All steps, other than the payment of consideration, shall have been completed in connection with the interest assigned, leased, sold, transferred or otherwise disposed ofAcquisition.
(s) The New Credit Agreement shall have been executed and delivered by all parties thereto, and the Company Initial Purchaser shall have received a true and correct copy such document which shall be released of in form and discharged from such obligations substance reasonably satisfactory to the extent so assumedInitial Purchaser. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it No loans shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity been borrowed under the Act of the Bonds and will not adversely affect the exclusion of interest New Credit Agreement on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Closing Date.
Appears in 1 contract
Conditions. 6.1 Conditions to Each Party's Obligation to Effect the Merger. The Company's interest respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of each of the following conditions (unless waived by each of the parties hereto in this Agreement may be assigned as a whole or in part, and its interest in accordance with the Facilities may be leased, sold, transferred or otherwise disposed provisions of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition Section 8.6 hereof):
(a) The waiting period applicable to the consummation of the Merger under the HSR Act shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof have expired or been terminated.
(b) shall be made unless the assignee, lessee, purchaser No preliminary or permanent injunction or other transferee, as order or decree by any federal or state court which prevents the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations consummation of the Company hereunder to Merger or materially changes the extent terms or conditions of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall have been issued and remain in effect. In the event any such order or injunction shall have been issued, each party agrees to use its reasonable efforts to have any such injunction lifted.
(c) The Commissioner of Corporations of the State of California shall have issued the Exemption Permit, and all necessary approvals under other state securities laws relating to the issuance or trading of the Wats▇▇ ▇▇▇mon Stock to be assigned as a whole issued to the Stockholders in connection with the Merger shall have been received.
(d) All material consents, authorizations, orders and approvals of (or filings or registrations with) any governmental commission, board or other regulatory body required in undivided partconnection with the execution, delivery and performance of this Agreement shall have been obtained or made, except for filings in connection with the Merger and any other documents required to be filed after the Effective Time.
(iie) The Wats▇▇ ▇▇▇mon Stock to be issued to the Company's interest Stockholders in connection with the Facilities Merger shall be leased as a whole or in undivided part have been authorized for trading on the Nasdaq National Market.
(f) Wats▇▇, ▇▇e Stockholders Agent and the term of such leasehold or Escrow Agent shall have entered into the term of any extension or extensions thereof at the option Escrow Agreement.
(g) At least ninety-five percent (95%) of the aggregate number of outstanding shares of Preferred Stock shall have been voluntarily converted into shares of Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, Common Stock prior to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed Effective Time.
(but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (bh) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in Wats▇▇ ▇▇▇ll have received the opinion of such Independent ExpertD'An▇▇▇▇ & ▇fla▇▇, ▇▇unsel to Wats▇▇, 42 43 dated the Fair Value (as hereinafter defined) of such rightsClosing Date, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale Merger will not impair be treated for federal income tax purposes as a reorganization within the validity under the Act meaning of Section 368(a) of the Bonds Code, and will not adversely affect that the exclusion Company and Wats▇▇ ▇▇▇l each be a party to that reorganization within the meaning of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit Section 368(b) of the FacilitiesCode. In rendering such opinion, or any interest thereincounsel shall be entitled to rely upon, among other things, reasonable assumptions as well as representations and covenants of Wats▇▇, ▇▇ts▇▇ ▇▇▇, the Company mayand certain stockholders of the Company.
(i) The Company shall have received the opinion of Venture Law Group, at its optionA Professional Corporation, cause such element or unitcounsel to the Company, or interest thereindated the Closing Date, to no longer the effect that the Merger will be deemed to be part treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Facilities for Code, and that the purposes Company and Wats▇▇ ▇▇▇l each be a party to that reorganization within the meaning of this Agreement by delivering Section 368(b) of the Code. In rendering such opinion, counsel shall be entitled to rely upon, among other things, reasonable assumptions as well as representations and covenants of Wats▇▇, ▇▇ts▇▇ ▇▇▇, the Company and certain stockholders of the Company.
(j) Wats▇▇ ▇▇▇ll have received the opinion of Price Waterhouse, dated the Closing Date, to the Authority effect that the Merger will be treated as a "pooling of interests" for accounting purposes.
(k) The Company shall have received from Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇ a letter, dated the Closing Date, indicating that the Company has not taken any action that would preclude it from entering into a transaction that would be treated as a "pooling of interests" for accounting purposes.
(l) This Agreement and the Trustee Merger and other transactions contemplated hereby shall have been approved and adopted by the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part requisite vote of the Facilities for Stockholders.
(m) Glen▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇rr▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ Anth▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇ll have entered into an Employment Agreement in substantially the purposes of this Agreement. For purposes of this Section 7.01:form attached hereto as Exhibit F, G and H.
Appears in 1 contract
Conditions. The Company's interest in Your obligations under this Agreement may in respect of each Option shall be assigned as a whole or in part, subject to the condition that all representations and its interest in the Facilities may be leased, sold, transferred or otherwise disposed warranties and other statements of by the Company herein are true and correct in all material respects at and as a whole or of the closing of the purchase and sale of such Option; the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed in part (whether an interest in a specific element or unit or an undivided interest), to any Personrespect of such Option; provided, however, that no such assignment, lease, sale, transfer or other disposition and the following additional conditions:
(a) shall relieve Counsel for the Company from its primary liability for its obligations under Section 5.01 hereof or specified in Annex III hereto shall have furnished to you their written opinion, dated the date of such closing, in form and substance reasonably satisfactory to you, to the effect set forth in Annex III hereto.
(b) shall be made unless On the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term date of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other dispositionclosing, the Company shall be released from have furnished to you such appropriate further information, certificates and discharged documents as you may reasonably request.
(c) Since the respective dates as of all liability which information is given in respect the Exchange Act Reports (as defined in Annex II hereto) to and including the date of such obligations to closing, there shall not have been any material adverse change in the extent so assumed (but only to such extent); provided, however, that the release and discharge capital stock or long-term debt of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee or any of its subsidiaries or any material adverse change, or any development involving a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating thatprospective material adverse change, in or affecting the opinion business, properties, financial position, stockholders' equity or results of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations operations of the Company representing indebtedness for borrowed money and its subsidiaries, otherwise than (i) continuing operating losses in the ordinary course of business and (ii) as set forth or for contemplated in the deferred purchase price Exchange Act Reports.
(d) Since the date of property which are being assumed the previous closing, if any, and up to and including the date of such closing, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Nasdaq National Market; (ii) a suspension or material limitation in trading in the Company's securities on the Nasdaq National Market; (iii) a general moratorium on commercial banking activities declared by such Personeither Federal or New York State authorities; providedor (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or wary, further, that after any such assumption, release and discharge as aforesaid, if the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent effect of any such assumption by event specified in this Clause (iv) in your judgment makes it impracticable or inadvisable to proceed with the Company (but only to such extent), purchase of the aforesaid assignee, lessee, purchaser or other transferee shall be released from Option on the terms and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of manner contemplated in this Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Sources: Option Agreement and Zero Coupon Convertible Note (Alliance Pharmaceutical Corp)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other following obligations of the Company hereunder shall be satisfied or fulfilled on or prior to the extent date of the interest assignedClosing, leased, sold, transferred or unless otherwise disposed of, and agreed to in writing by the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, Placement Agent:
(a) The Company shall have delivered to the Placement Agent, at the Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company is incorporated and each other jurisdiction in which the Company is qualified to do business as a foreign corporation; (ii) the articles of incorporation of the Company, as currently in effect, certified by the Secretary of State of the state where the Company is incorporated; (iii) by- laws of the Company certified by the secretary of the Company; and (iv) certified resolutions of the Board of Directors of the Company approving this Agreement and the sale of the Debentures.
(b) There shall have occurred no event which had a Material Adverse Effect on the Company or any of its businesses, assets, prospects or the Company's securities since the date of this Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the Company which (i) seeks to enjoin or otherwise prohibit or restrict the consummation of the transactions contemplated by this Agreement or (ii) if adversely determined, would have a Material Adverse Effect on the Company or the Company's securities.
(d) The Company shall have delivered to the Placement Agent a certificate of its principal executive and financial officers as to the matters set forth in Sections 7(a), (b) and (c) of this Agreement and to the further effect that (i) the Company's interest Company is not in this Agreement shall be assigned as default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or other instrument to which it is a whole or in undivided partparty, except where such default has not and will not have a Material Adverse Effect; (ii) the Company's interest representations and warranties contained in this Agreement are true and correct in all respects on such date with the Facilities same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's articles of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Section 7(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a breach or default thereof by the Company or would cause acceleration of any obligation of the Company, or could adversely affect the business, operations, financial condition or prospects of the Company.
(e) The Placement Agent shall be leased have received the opinion of Rutan & Tucker, LLP, counse▇ ▇▇▇ th▇ ▇▇▇▇any, dated as of the Closing date in form and substance reasonably satisfactory to the Placement Agent and its counsel.
(f) The Company shall have prepared and filed or delivered to counsel for filing with the SEC and any states in which such filing is required, a Form D relating to the sale of the Debentures and such other documents and certificates as are required.
(g) Subscriptions for the Debentures shall have been accepted by the Company.
(h) In addition to the right of the Placement Agent to terminate this Agreement and not consummate the transactions contemplated by this Agreement as a whole or in undivided part and result of the term of such leasehold or the term of any extension or extensions thereof at the option failure of the Company to comply with any of its obligations set forth in this Agreement, this Agreement may be terminated by the Placement Agent by written notice to the Company at any time prior to the Closing if, in the Placement Agent's sole judgment, (i) the Company shall extend beyond have sustained a loss that is material to the maturity date Company, taken as a whole, whether or not insured, by reason of fire, earthquake, flood, accident or other calamity, or from any labor dispute or court or government action, order or decree; (ii) trading in securities on any exchange or system shall have been suspended or limited, either generally or specifically, with respect to the Bonds or Company's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities, generally or specifically, with respect to the Company's interest Common Stock (not in force and effect on the Facilities date of this Agreement); (iv) a banking moratorium shall be sold, transferred have been declared by Federal or otherwise disposed New York State authorities; (v) an outbreak of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser major international hostilities or other transferee national or international calamity shall assume have occurred; (vi) the obligations Congress of the United States or any state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Placement Agent reasonably believes is likely to have a Material Adverse Effect on the business, financial condition or financial statements of the Company under Section 5.01 hereof or the market for the remaining term Common Stock; (vii) the Common Stock shall have been delisted from NASDAQ or the Company shall have received notice from NASDAQ advising the Company of its intention to have the Common Stock delisted from NASDAQ, whether conditional or otherwise, or the Company shall fail to meet the requirements for continued listing on NASDAQ; or (viii) there shall have been, in the Placement Agent's judgment, a material decline in the Dow Jones Industrial Index or t▇▇ ▇▇rket price of the Common Stock at any time subsequent to the date of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve Conditions Precedent to the Company from its primary liability for its Participations in the Aircraft. It is agreed that the respective obligations under Section 5.01 hereof of the Participants to participate in the payments of Lessor's Cost are subject to the satisfaction prior to or on the Delivery Date of the following conditions precedent, except that paragraphs (biii), (xx), (xxiv) (insofar as it relates to the Original Loan Participant), (xxv) and (xxvi) shall not be made unless a condition precedent to the assigneeobligation of the Original Loan Participant, lesseeand paragraphs (iv), purchaser (x) (insofar as it relates to the Owner Participant), (xiv), (xix)(a) and (xxvii) shall not be a condition precedent to the obligation of the Owner Participant:
(i) The Participants shall have received due notice with respect to such participation pursuant to Section 2 hereof (or other transfereeshall have waived such notice either in writing or as provided in Section 2).
(ii) No change shall have occurred after the date of the execution and delivery of this Agreement in applicable law or regulations thereunder or interpretations thereof by appropriate regulatory or judicial authorities which, in the opinion of the Owner Participant or the Original Loan Participant, as the case may be, prior to would make it a violation of law or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof regulations for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) Lessee, the aggregate principal amount Indenture Trustee, any Participant or the Owner Trustee to execute, deliver and perform the Operative Documents to which any of the Bonds then Outstanding and them is a party or (y) the outstanding principal Original Loan Participant or the Owner Participant to make its respective Commitment available or, in the case of the Original Loan Participant, to acquire the Certificates or to realize the benefits of the security afforded by the Trust Indenture.
(iii) In the case of the Owner Participant, the Original Loan Participant shall have made available the amount of all other obligations its Commitment for the Aircraft in accordance with Section 1 hereof.
(iv) In the case of the Company representing indebtedness for borrowed money or Original Loan Participant, the Owner Participant shall have made available the amount of its Commitment for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Aircraft in accordance with Section 5.01 1 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Conditions. The Company's interest obligations of the Vendor and Wave Wireless under this Agreement are subject to the following conditions for the exclusive benefit of the Vendor and Wave Wireless being: (i) fulfilled in all material respects in the reasonable opinion of the Vendor at the Time of Closing; or (ii)where such conditions are not so fulfilled, (A) waived by the Vendor at or before the Time of Closing; or (B) if agreed by the Vendor, Wave Wireless and the Purchaser, indemnified for by the Purchaser:
(a) the representations and warranties of the Purchaser contained in the Agreement will be true and correct on and as of the Closing Date;
(b) the Purchaser will have complied with all terms, covenants and agreements in this Agreement may agreed to be assigned as a whole performed or in partcaused to be performed by it on or before the Closing Date; and
(c) no action or proceeding against the Purchaser will be pending or threatened by any person, and its interest in the Facilities may be leasedcompany, soldfirm, transferred governmental authority, regulatory body or otherwise disposed of by the Company as a whole agency to enjoin or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if prohibit:
(i) the Company's interest in purchase and sale of the Shares contemplated by this Agreement shall be assigned as a whole or in undivided part, the right of the Purchaser to own the Shares; or
(ii) the Company's interest right of the Acquired Companies to conduct their operations and carry on the Business in the Facilities shall be leased ordinary course as a whole or the Business and its operations have been carried on in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or past; and
(iiid) the Company's interest Purchaser will tender to the Vendor a Purchaser’s Closing Certificate substantially in the Facilities shall be sold, transferred or otherwise disposed form of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument Schedule 2 signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part officer of the Facilities for Purchaser certifying the purposes truth and correctness at the Closing Date of this Agreement. For purposes the representations and warranties of this Section 7.01:the Purchaser contained in Article 5, the performance of all covenants and agreements of the Purchaser, and that the condition described in subsection 9.1(c) does not exist as at the Closing Date.
Appears in 1 contract
Conditions. The Company's following general conditions are incorporated into and made part of this Agreement:
A. SHN is an independent contractor and will maintain complete control of and responsibility for its employees, subconsultants, subcontractors, and agents.
B. CLIENT will provide SHN with all available information concerning this Project, including electronic copies, as necessary. SHN shall be entitled to rely, without liability, on the accuracy and completeness of any and all information and services provided by CLIENT, CLIENT’s consultants and contractors, and information from public records, without the need for independent verification.
C. In order to complete the work, CLIENT will provide the right of entry for SHN and subcontractor personnel.
D. SHN will take reasonable precautions to safeguard its own employees. Except as otherwise expressly agreed to in writing by SHN, SHN will have no responsibility for any Project safety program or the safety of any entity or person other than SHN and its employees.
E. Services performed by SHN under this Agreement will be conducted in a manner consistent with that level of care and skill ordinarily expected by members of the profession currently practicing in the same locality, under similar conditions. SHN will comply with applicable laws, rules, and regulations.
F. No representation, express or implied, of warranty or guarantee is included or intended in this Agreement or in any report, opinion, document, or otherwise.
G. CLIENT recognizes that subsurface conditions at various locations on the Project property may vary from those encountered at the location where borings, surveys, or explorations are made by SHN.
H. The data, interpretations, and recommendations of SHN are based solely on the information available to SHN. SHN will be responsible for its data, interpretations, and recommendations, but will not be responsible for interpretations of the developed information made by others.
I. In such a case where CLIENT requests that SHN provide machine-readable information and data regarding PROJECT to CLIENT or CLIENT’s authorized agent, SHN shall not be liable for claims, liabilities, or losses arising out of or in connection with:
(i) the modifications or misuse by CLIENT or third parties of such electronic data;
(ii) decline of accuracy of readability of electronic data due to inappropriate storage conditions or duration; or
(iii) any use by CLIENT or third parties of such electronic data, for additions to this project, for the completion of this project by others for generation of record drawings, or for any other project by SHN. Drawings shall not be interpreted as being true scale documents of the proposed work. CLIENT, by acceptance of such electronic data, agrees to indemnify SHN for damages and liability resulting from the modification, use, or misuse of such electronic data, as described above.
J. Neither CLIENT nor SHN may delegate, assign, or transfer their duties or interest in this Agreement without the written consent of the other party except as expressly allowed for herein. SHN may use third parties it engages to perform the services provided hereunder, and SHN may assign the right to collect any amounts due for work performed pursuant to this Agreement to third parties, without the consent of CLIENT having first been obtained
K. CLIENT shall review and approve SHN-prepared project documents conforming to the Scope of Services at each phase of the Project.
L. Any opinion of the capital, construction, or operating costs of the facilities or operations related to the Scope of Services and prepared by SHN, represents SHN's judgment as a professional and is supplied for the general guidance of CLIENT. Because SHN has no control over the cost of labor, material, or equipment, or over the competitive bidding or market conditions, SHN does not guarantee the accuracy of such opinions as compared to contractor bids or actual costs to CLIENT.
M. If SHN assists CLIENT in the process of selecting other consultants, contractors, or services, CLIENT shall perform its own due diligence in making a final decision. SHN makes no warranty or guarantee on the performance of the selected consultant, contractor, or service.
N. If CLIENT proposes and goes forward with an objectionable project decision or feature, construction activity, or operational procedure, SHN shall notify CLIENT of its objection and the reasons for the objection. If CLIENT moves forward with the objectionable action, SHN shall be held harmless from liability and negative results related to the action.
O. SHN and CLIENT agree that any dispute arising under this Agreement and the performance thereof with an amount in controversy exceeding $10,000.00 shall be subject to non-binding mediation as a prerequisite to further legal proceedings. The cost of such mediation shall be borne equally by the parties. Any party making a demand for mediation shall do so in writing to the other party, and such demand shall suggest not less than five (5) licensed attorneys with offices located within the Mendocino County, California, as disinterested mediators to assist with resolution of the dispute. The parties shall cooperate to arrange mediation with a mediator from such list selected by the non-demanding party to be conducted not less than 60 days after the demand having been made. Failure by a party to cooperate with the foregoing shall enable the other party to proceed to further legal proceedings without completing mediation and the party so failing shall be liable for any damages caused by such. Any pertinent statute of limitations shall be tolled pending the conduct of the above-described mediation process. This Agreement shall be governed by the laws of the State of California, and any litigation or other legal proceedings shall be conducted in the Superior Court of California. The parties agree that this Agreement was negotiated and executed in Mendocino County, California, and as such, agree that the proper venue for adjudication of any disputes arising hereunder shall be the Superior Court of California located in Mendocino County, California. SHN and CLIENT waive any right to a trial by jury.
P. SHN and CLIENT waive all consequential damages and any similar damages in tort, including, but not limited to, damages for loss of use, profits, revenue, business opportunity, or production, for claims, disputes, or other matters arising out of or relating to this Agreement, regardless of whether such claim or dispute is based upon breach of contract, or the negligent act, or omission of SHN or its employees, agents, subconsultants, or other legal theory. This mutual waiver shall survive termination or completion of this Agreement.
Q. Unless noted otherwise, CLIENT warrants and represents all work to be performed by SHN pursuant to this Agreement is not subject to State or Federal prevailing wages. CLIENT shall also indemnify, defend, and hold SHN harmless for any other liabilities arising from or related to the breach of CLIENT’s representation and warranty regarding prevailing wages.
R. Reasonable schedule extensions will be allowed for any delay that is beyond the control of SHN. Matters beyond the control of SHN which may give rise to schedule extensions include, but are not limited to inclement weather, unanticipated Project conditions, delays in obtaining necessary third-party approvals regarding the Project, illness or death of key Project personnel, and delays caused by third parties working on the Project. In the event of delay allowed for herein, the parties agree to work together in good faith to make appropriate modifications to the schedule described in Section 3(A) above.
S. In the event there is a change to the Scope of Services that is agreed to in writing by the parties, but the parties fail to agree upon a change to the above-described schedule for performance of the services, a reasonable extension to the schedule will be allowed to accommodate the change to the Scope of Services.
T. Attached hereto and incorporated herein is the Initial Fee Schedule, January 1, 2021. SHN determines its fees on an annual basis. U. SHN will submit monthly progress invoices to CLIENT and the final ▇▇▇▇ upon completion of the services. CLIENT shall notify SHN within two (2) weeks of receipt of invoice of any dispute with the invoice. CLIENT and SHN will act in good faith to resolve any disputed items promptly. Payment on invoice amounts is due upon receipt of invoice by CLIENT and is past due fifteen (15) days from the date of the invoice. Thereafter, SHN will charge, and CLIENT agrees to pay, a finance charge of 1.5% per month on the outstanding balance. At SHN’s discretion, this Agreement may be assigned as a whole terminated without penalty or in part, liability to SHN for CLIENT failure to make timely payment for outstanding invoices. The retainer will be held until Project completion and its interest in will be applied to the Facilities final invoice.
V. This Agreement may be leased, sold, transferred or otherwise disposed of by the Company terminated as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if follows:
(i) Upon receipt by either party from the Company's interest in this Agreement other of ten (10) days' written notice of termination. In such event, SHN shall be assigned as a whole or in undivided partcompensated for all service performed prior to the termination notice date plus reasonable termination expenses, (ii) including the Company's interest in the Facilities shall be leased as a whole or in undivided part cost of completing analysis, records, and the term of such leasehold or the term of any extension or extensions thereof reports necessary to document job status at the option time of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:termination.
Appears in 1 contract
Sources: Master Services Agreement
Conditions. The Companyconsummation of the sale and purchase contemplated by this Agreement will be subject to the following conditions:
a. The representations and warranties by Seller set forth in Section 7 shall be true and correct in all material respects as of the date when made and as of the Closing.
b. There shall have been no material adverse change in the condition of the Properties except depletion through normal production within authorized allowables and rates of production, depreciation of equipment through ordinary wear and tear, and other transactions permitted under this Agreement or approved in writing by Buyer between the date of this Agreement and Closing.
c. All requirements made by Buyer with regard to title to the Properties shall have been fully satisfied or waived by Buyer. All consents, approvals and authorizations of assignments, and waivers of preferential rights to purchase required by Buyer shall have been submitted to and approved by Buyer.
d. Seller and Buyer understand and agree that if: (1) title to the Properties is not satisfactory to Buyer; (2) Seller's actual interests in the Properties is different than as represented by Seller and the difference causes a diminution in Seller's net revenue interest of more than 10% of that which Seller represents to own; (3) contracts, claims or litigation to which Buyer takes exception are material; or, (4) Seller fails to comply with any of the conditions set forth in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any PersonAgreement; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company Buyer may, at its option, cause such element either terminate this Agreement at any time on or unitbefore Closing, or interest thereinreduce the Purchase Price by an amount agreeable to both parties. However, any reduction in Seller's net revenue interests below that which is represented in Exhibit "A" shall result in an automatic reduction in the Purchase Price commensurate with the reduction in such net revenue interest.
e. The parties shall have performed or complied with all agreements and covenants required by this Agreement of which performance or compliance is required prior to no longer or at Closing.
f. All legal matters in connection with and the consummation of the transactions contemplated by this Agreement shall be deemed approved by counsel for Buyer and there shall have been furnished by Seller such records and information as Buyer's counsel may reasonably request for that purpose.
g. Notwithstanding anything to the contrary in this Agreement, at Buyer's option, Buyer shall have the unilateral right to terminate this Agreement not later than December 15, 2010 if Buyer determines it does not have the rights to obtain and maintain the rights to be part Operator of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required Properties pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, existing Operating Agreements at Closing. Operations shall no longer be deemed transferred from Seller to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Buyer at Closing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Sun River Energy, Inc)
Conditions. The obligation of the Initial Purchaser to purchase the Units under this Agreement are subject to the satisfaction or waiver of each of the following conditions:
(a) All the representations and warranties of the Company's interest , Holdings and the Subsidiary Guarantors contained in this Agreement may and in each of the Documents shall be assigned true and correct as a whole of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company, Holdings, and the Subsidiary Guarantors and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by the Company, Holdings, the Subsidiary Guarantors or such other parties, which the failure to so satisfy could not, individually or in partthe aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that could prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and its interest no stop order suspending the qualification or exemption from qualification of any of the Securities in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after due inquiry, be pending or threatened as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that could, as of the Closing Date, reasonably be expected to prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) are disclosed in the Facilities may Final Offering Circular, (B) if adversely determined could not, individually or in the aggregate, adversely affect the issuance or marketability of the Units, or (C) could not, individually or in the aggregate, have a Material Adverse Effect.
(d) Since the date hereof, there shall not have been any Material Adverse Change.
(e) The Units, Notes and Warrants shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The proceeds of the Offering will be leased, sold, transferred or otherwise disposed of used in the manner described in the funds flow memorandum delivered by the Company prior to the Closing Date, with such terms and in such form as a whole is reasonably acceptable to the Initial Purchaser.
(h) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or in part (whether an interest in a specific element or unit or an undivided interest)accounting officer(s) of the Company, Holdings and the Subsidiary Guarantors, on behalf of the Company, Holdings and the Subsidiary Guarantors, respectively, to any Person; provided, however, the effect that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under representations and warranties set forth in Section 5.01 4 hereof or are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date, (b) shall the Company, Holdings and the Subsidiary Guarantors have complied with all agreements and satisfied all conditions in all material respects on its part to be made unless performed or satisfied hereunder at or prior to the assigneeClosing Date, lessee(c) at the Closing Date, purchaser since the date hereof or since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date thereof), except as disclosed in the Final Offering Circular, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date thereof), other transfereethan as described in the Final Offering Circular or contemplated hereby, neither Holdings, the Company nor any Subsidiary has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to Holdings, the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of Holdings, the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of Holdings, the Company or any Subsidiary that is material to the business, condition (financial or otherwise) or results of operations or prospects of Holdings, the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Units has not been enjoined (temporarily or permanently);
(ii) certificates dated the Closing Date, executed by the Secretary of each of the Company, Holdings and each Subsidiary Guarantor, certifying such matters as the case Initial Purchaser may bereasonably request;
(iii) the opinions of Weil, prior Gotshal & Manges LLP, counsel to or simultaneously the Issuers and the Guarantors, da▇▇▇ ▇▇e Closing Date, in the forms of Exhibit A and Exhibit B attached hereto and containing customary assumptions and qualifications reasonably satisfactory to the Initial Purchaser;
(iv) the letter from Weil, Gotshal & Manges LLP, counsel to the Issuers, dated the Closing Dat▇, ▇▇ the form of Exhibit C attached hereto;
(v) the opinion of Marc H. Perlowitz, General Counsel of the Issuers, dated ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, in the form of Exhibit D attached hereto;
(vi) an opinion, dated the Closing Date, of Latham & Watkins LLP, counsel to the Initial Purchaser, i▇ ▇▇▇▇ sa▇▇▇▇▇▇▇ory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(i) The Initial Purchaser shall have received from Ernst & Young LLP, independent auditors, with such assignmentrespect to the Company, lease(A) a customary comfort letter, saledated the date of the Final Offering Circular, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form and substance reasonably satisfactory to the Trustee Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circular and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that Ernst & Young LLP reaffirm the statements made in its letter furnished pursuant to clause (A).
(j) Each of the Documents (except the Blocked Account Agreements and the AuthorityLockbox Account Agreement) shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document (except the Blocked Account Agreements and the Lockbox Account Agreement), except that the failure by the Initial Purchaser to execute and deliver the Registration Rights Agreement shall not constitute a basis upon which the Initial Purchaser may terminate this Agreement pursuant to Section 9(b) hereof if all of the other conditions to the obligations of the Company hereunder Initial Purchaser to purchase the Units under this Agreement have been satisfied.
(k) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents that are required to be delivered at or prior to the extent Closing Date.
(l) None of the interest assignedparties to any of the Documents (other than the Initial Purchaser) shall be in breach or default in any material respect under their respective obligations thereunder.
(m) On or prior to the Closing Date, leasedthe Company and the Subsidiary Guarantors shall have entered into a restatement of the Credit Facility, soldin form and substance reasonably satisfactory to the Initial Purchaser, transferred or otherwise disposed ofproviding for, among other items, a reduction in the revolving credit commitment thereunder and permitting a second-priority lien on the assets secured by the Credit Facility, and the Company Credit Facility, as restated, shall be released in full force and effect as of such date.
(n) The Collateral Agent shall have received on the Closing Date:
(i) appropriately completed copies, which have been duly authorized for filing by the appropriate Person, of Uniform Commercial Code financing statements naming the Company and discharged from such obligations each Subsidiary Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the extent so assumed. Notwithstanding Indenture;
(ii) appropriately completed copies, which have been duly authorized for filing by the foregoingappropriate Person, of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (aother than Priority Liens) if of any Person in any collateral described in the Indenture previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Subsidiary Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in the Indenture, other than such financing statements that evidence Priority Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (i) the CompanyLien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Final Offering Circular; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Indenture, in each case subject to Permitted Liens.
(o) All Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (n)(i) and (ii) above (collectively, the "Filing Statements") shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent (the "Filing Agent"). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Collateral Agent and its counsel (i) the Filing Agent's interest in this Agreement shall be assigned as a whole or in undivided partreceipt of all Filing Statements, (ii) that the Company's interest Filing Statements have either been submitted for filing in the Facilities shall appropriate filing offices or will be leased as a whole or submitted for filing in undivided part the appropriate offices within ten days following the Closing Date and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) that the Filing Agent will notify the Collateral Agent and its counsel of the results of such submissions within 30 days following the Closing Date.
(p) The Administrative Agent shall have executed and delivered to the Collateral Agent the acknowledgements attached to the Borrowers' Pledge Agreement and Holdings' Pledge Agreement relating to the Pledged Stock.
(q) By 5:00 p.m. on Monday, March 31, 2003, the respective Boards of Directors of the Company's interest in , Holdings and the Facilities Subsidiary Guarantors shall have approved and authorized by all necessary corporate action (1) the execution and delivery of the Documents, (2) all actions to be soldperformed or satisfied under the Documents, transferred or otherwise disposed (3) the consummation of as a whole or in undivided partthe transactions contemplated by the Documents, (4) the pricing terms of the Notes, Warrants and Units, and (b5) all other actions necessary in connection with the event that transactions contemplated by the assignee, lessee, purchaser or other transferee shall assume Documents and the obligations offering of the Company under Section 5.01 hereof for Notes, Warrants and Units, and shall have provided you with notice of the remaining term of this Agreementsame.
(r) By 5:00 p.m. on Monday, to the extent of such assignmentMarch 31, lease, sale, transfer or other disposition2003, the Company representations and warranties of the Company, Holdings and the Subsidiary Guarantors set forth in Sections 4(f), (g), (pp), (qq), (rr), (ss), (tt) and (uu) hereof shall be released from true and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:correct.
Appears in 1 contract
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its Each Noteholder’s obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery 1 of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned subject to the satisfaction or fulfillment of the Tender Conditions (as a whole or in undivided part, (ii) the Company's interest defined in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and Term Sheet).
(b) The consummation of the Exchange Offers shall be subject to the satisfaction of the conditions to be set forth in the Offering Memorandum, including the fulfillment of the Exchange Conditions (as defined in the Term Sheet). The Company may waive or amend any of the conditions to the consummation of the Exchange Offers, including the Exchange Conditions, or make any modification to the terms of the Exchange Offers (including the terms of the New Notes) in its sole discretion, provided that any such waiver or modification will not adversely affect any Noteholder’s holdings of New Notes without such Noteholder’s prior written consent. In addition, the Company may make any of the modifications to the terms of the Exchange Offers (including the terms of the New Notes) set forth on Schedule II of the Term Sheet and any such modification shall not be deemed to adversely affect any Noteholder’s holdings of New Notes.
(c) The Company shall withdraw the Exchange Offers in the event that on any day while the assigneeExchange Offers are outstanding, lessee, purchaser or other transferee shall assume the obligations any of the Company under Section 5.01 hereof for the remaining term of this Agreement, Tender Conditions would no longer be able to the extent of such assignment, lease, sale, transfer be satisfied (and not susceptible to cure or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (bredress using commercially reasonable efforts) shall be conditioned upon the delivery or waived by the Company to the Authority in accordance with this Agreement and the Trustee of Term Sheet (except as a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 result of the sum of (x) the aggregate principal amount failure of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such Noteholders to fulfill their obligations under Section 5.01 hereof, in whole or in part, at any time this Agreement and from time to time, and, to the extent of any such assumption by the Term Sheet).
(d) The Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority Noteholder on the fifth business day following the commencement of the Exchange Offers and on the Trustee closing date of the Exchange Offers, a certificate of the Company, signed by an opinion executive officer of Bond Counsel the Company and dated as of each respective date, to the effect that the proposed assignment, lease or sale will not impair the validity under the Act representations and warranties of the Bonds Company Parties in this Agreement are true and will not adversely affect the exclusion correct in all material respects on and as of interest on the Bonds from gross income each respective date (except for federal tax purposes. After any leaserepresentations and warranties made as of a specified date, sale, transfer or other disposition of any element or unit which shall be true and correct only as of the Facilitiesspecified date), or any interest therein, with the Company may, at its option, cause same effect as if made on such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:dates.
Appears in 1 contract
Sources: Support Agreement (Realogy Corp)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other following obligations of the Company hereunder shall be ---------- satisfied or fulfilled on or prior to the extent date of each Closing, unless otherwise agreed to in writing by the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, Offering Agent:
(a) The Company shall have delivered to the Offering Agent, at the Initial Closing, (i) a currently-dated long-form good standing certificate or telegram from the Secretary of State where the Company is incorporated; (ii) the certificate of incorporation of the Company, as currently in effect, certified by the secretary of the Company; and (iii) by-laws of the Company certified by the secretary of the Company.
(b) There shall have occurred no event which had a Material Adverse Effect on the Company or its business, assets, prospects or the Company's securities since the date of this Agreement.
(c) No litigation or administrative proceeding shall have been threatened or commenced against the Company which (i) seeks to enjoin or otherwise prohibit or restrict the consummation of the transactions contemplated by this Agreement or (ii) if adversely determined, would have a Material Adverse Effect on the Company or the Company's securities.
(d) The Company shall have delivered to the Offering Agent a certificate of its principal executive and financial officers as to the matters set forth in Paragraphs 8(a), (b) and (c) of this Agreement and to the further effect that (i) the Company's interest Company is not in this Agreement shall be assigned default, in any respect, under any note, loan agreement, security agreement, mortgage, deed of trust, indenture, contract, alliance agreement, lease, license, joint venture agreement, agreement or other instrument to which it is a party, except as disclosed in the Prospectus and except where such default has not and will not have a whole or in undivided part, Material Adverse Effect; (ii) the Company's interest representations and warranties contained in this Agreement are true and correct in all respects on such date with the Facilities same force and effect as if made on such date; (iii) there has been no amendment or changes to the Company's certificates of incorporation or by-laws or authorizing resolutions from those delivered pursuant to Paragraph 8(a) of this Agreement; and (iv) no event has occurred which, with or without the lapse of time or giving of notice, or both, would constitute a breach or default thereof by the Company or would cause acceleration of any obligation of the Company, or could adversely affect the business, operations, financial condition or prospects of the Company.
(e) The Offering Agent shall be leased have received the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Company, dated as of the Closing Date in form and substance reasonably satisfactory to the Offering Agent and its counsel.
(f) Subscriptions for at least the Minimum Amount of Offered Shares shall have been accepted by the Company.
(g) In addition to the right of the Offering Agent to terminate this Agreement and not consummate the transactions contemplated by this Agreement as a whole or in undivided part and result of the term of such leasehold or the term of any extension or extensions thereof at the option failure of the Company to comply with any of its obligations set forth in this Agreement, this Agreement may be terminated by the Offering Agent by written notice to the Company at any time prior to the Initial Closing if, in the Offering Agent's sole judgment, (i) the Company shall extend beyond have sustained a loss that is material to the maturity date Company, taken as a whole, whether or not insured, by reason of fire, earthquake, flood, accident or other calamity, or from any labor dispute or court or government action, order or decree; (ii) trading in securities on any exchange or system shall have been suspended or limited, either generally or specifically, with respect to the Bonds or Company's Common Stock; (iii) material governmental restrictions have been imposed on trading in securities, generally or specifically, with respect to the Company's interest Common Stock (not in force and effect on the Facilities date of this Agreement); (iv) a banking moratorium shall be sold, transferred have been declared by Federal or otherwise disposed New York State authorities; (v) an outbreak of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser major international hostilities or other transferee national or international calamity shall assume have occurred; (vi) the obligations Congress of the United States or any state legislative body shall have passed or taken any action or measure, or such bodies or any governmental body or any authoritative accounting institute, or board, or any governmental executive shall have adopted any orders, rules or regulations, which the Offering Agent reasonably believes is likely to have a Material Adverse Effect on the business, financial condition or financial statements of the Company under Section 5.01 hereof or the market for the remaining term Common Stock; or (vii) there shall have been, in the Offering Agent's judgment, a material decline in the Dow ▇▇▇▇▇ Industrial Index or the market price of the Common Stock at any time subsequent to the date of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Conditions. The Company's interest obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the performance by each of the Company and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company and the Subsidiaries contained in this Agreement may and in each of the Transaction Documents shall be assigned true and correct as a whole of the date hereof and at the Closing Date, except to the extent that the failure of such representations and warranties (without giving effect to any “material,” “materiality,” “Material Adverse Effect” or any similar terms, qualifications or limitations to such representations and warranties) to be true or correct individually or in partthe aggregate would not reasonably be expected to have a Material Adverse Effect. On or prior to the Closing Date, the Company and each other party to the Transaction Documents (other than the Initial Purchaser) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Transaction Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Transaction Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and its interest (B) would not, individually or in the Facilities may aggregate, reasonably be leasedexpected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Pricing Disclosure Package and the Final Offering Circular, sold, transferred or otherwise disposed of there shall not have been any event that would have a Material Adverse Effect.
(e) The Notes shall (i) have been designated PORTAL securities in accordance with the rules and regulations adopted by the Financial Industry Regulatory Authority relating to trading in the PORTAL market, and (ii) be eligible for clearance and settlement through DTC.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a whole or in part lower rating to the Notes than that on which the Notes were marketed.
(whether an interest in a specific element or unit or an undivided interest)g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer of the Company and (2) the Chief Financial Officer of the Company, on behalf of the Company, to any Person; provided, however, the effect that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under representations and warranties set forth in Section 5.01 4 hereof and in each of the Transaction Documents are true and correct in all respects, except to the extent that the failure of such representations and warranties (without giving effect to any “material,” “materiality,” “Material Adverse Effect” or any similar terms, qualifications or limitations to such representations and warranties) to be true or correct individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect, with the same force and effect as though expressly made at and as of the Closing Date, (b) shall the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be made unless the assignee, lessee, purchaser performed or other transferee, as the case may be, satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery since the date of an instrument the most recent financial statements in writing satisfactory in form to the Trustee Pricing Disclosure Package and the AuthorityFinal Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), all no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Pricing Disclosure Package and the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other obligations than as described in the Pricing Disclosure Package and the Final Offering Circular or contemplated hereby, neither the Company nor any Subsidiary of the Company hereunder has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the extent Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, financial condition or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, financial condition or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchaser may reasonably request covering such matters as are customarily covered in such certificates.
(iii) a certificate from the Chief Financial Officer of the Company, dated as of the date hereof and as of the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser as to the accuracy of certain numbers contained or incorporated by reference in the Pricing Disclosure Package and the Final Offering Circular, which numbers shall be set forth in a schedule attached to such certificate.
(iv) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser or its counsel.
(v) the opinion of ▇▇▇▇▇▇▇▇ PC, counsel to the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit A attached hereto.
(vi) the opinion of Holme ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, local Colorado counsel to the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit B attached hereto.
(vii) the opinion of Carlin, Edwards, ▇▇▇▇▇ & ▇▇▇▇, PLLC, local Michigan counsel to the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit C attached hereto.
(viii) the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, local Oregon counsel to the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit D attached hereto.
(ix) the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, General Counsel of the Company, dated the Closing Date and addressed to the Initial Purchaser, substantially in the form of Exhibit E attached hereto.
(x) the opinion of Proskauer Rose LLP, counsel to the Initial Purchaser, dated the Closing Date, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(xi) a certificate from the U.S. Bank, National Association, as tender agent of the Company, setting forth: (a) the principal amount of 9.5% Notes and 7.5% Notes tendered pursuant to the tender offers, (b) the aggregate total consideration payable with respect to those 9.5% Notes and 7.5% Notes that were tendered prior to the consent payment deadline, (c) the aggregate tender offer consideration payable with respect to the 9.5% Notes and 7.5% Notes that were tendered after the consent payment deadline and prior to the expiration date, (d) the aggregate accrued interest assignedpayable with respect to the tendered 9.5% Notes and 7.5% Notes on the payment date and (e) the total amounts payable with respect to the tendered 9.5% Notes and 7.5% Notes on the Payment Date.
(h) The Initial Purchaser shall have received (A) a customary comfort letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, leasedindependent auditors, soldwith respect to the Company, transferred or otherwise disposed ofdated as of the date hereof, in form and substance satisfactory to the Initial Purchaser and its counsel, with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Circular and (B) a customary bring-down comfort letter from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, dated the Closing Date, in form and substance satisfactory to the Initial Purchaser and its counsel, to the effect that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information contained in the Pricing Disclosure Package and the Final Offering Circular.
(i) Each of the Transaction Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each of the Transaction Documents.
(j) The Amended and Restated Credit Agreement shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed copy of the Amended and Restated Credit Agreement.
(k) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Transaction Documents.
(l) The terms of each Transaction Document shall conform in all material respects to the description thereof in the Pricing Disclosure Package and the Final Offering Circular.
(m) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be released of and discharged from such obligations satisfied that (A) the Lien granted to the extent so assumedCollateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Pricing Disclosure Package and the Final Offering Circular; and (B) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens.
(n) All Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (m)(i) and (m)(ii) above (collectively, the “UCC Statements”) shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent (the “Filing Agent”). Notwithstanding The Filing Agent shall have acknowledged in a writing that is reasonably satisfactory to the foregoing, (a) if Collateral Agent and its counsel (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided partFiling Agent’s receipt of all UCC Statements, (ii) that the Company's interest UCC Statements have either been submitted for filing in the Facilities shall appropriate filing offices or will be leased as a whole or submitted for filing in undivided part the appropriate offices within ten days following the Closing Date and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume Filing Agent will notify the obligations Collateral Agent and its counsel of the Company under Section 5.01 hereof for results of such submissions within 30 days following the remaining term Closing Date.
(o) Concurrently with the closing of this Agreement, to the extent of such assignment, lease, sale, transfer or other dispositionOffering, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is repurchase not less than an amount equal to 10/7 of the sum of (x) the $392.6 million in aggregate principal amount of the Bonds then Outstanding Company’s outstanding 9.5% Notes and (y) the outstanding not less than $3.5 million in aggregate principal amount of all other obligations of the Company’s outstanding 7.5% Notes.
(p) The Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release shall have executed and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, delivered to the extent of any such assumption Initial Purchaser an engagement letter in connection with the Offering in customary form as mutually agreed in good faith by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Initial Purchaser.
Appears in 1 contract
Conditions. The Company's interest in this obligation of any Agent, as agent of the Operating Partnership, at any time ("Solicitation Time") to solicit offers to purchase the Securities, the obligation of any Agent to purchase Securities as principal pursuant to any Terms Agreement may be assigned as a whole or in partotherwise, and its interest the obligation of any other purchaser to purchase Securities shall in each case be subject (1) to the condition that all representations and warranties of the Operating Partnership herein and all statements of officers of the Operating Partnership made in any certificate furnished pursuant to the provisions hereof are true and correct (i) in the Facilities may be leasedcase of an Agent's obligation to solicit offers to purchase Securities, soldat and as of such Solicitation Time and (ii) in the case of any Agent's or any other purchaser's obligation to purchase Securities, transferred or otherwise disposed at and as of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), time the Operating Partnership accepts the offer to any Person; provided, however, that no purchase such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transfereeSecurities and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or simultaneously time of purchase, as the case may be, the Operating Partnership shall have complied with such assignment, lease, sale, transfer all its agreements and all conditions on its part to be performed or other disposition, assumes, by delivery of an instrument in writing satisfactory in form satisfied hereunder; and (3) to the Trustee following additional conditions when and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, as specified:
(a) if Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the case may be:
(i) the Company's interest Registration Statement, including any Rule 462(b) Registration Statement, has become effective under the Act; the Prospectus as amended or supplemented (including, if applicable, the Pricing Supplement) with respect to such Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by such rule; no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall have been commenced or shall be pending before or threatened by the Commission to the knowledge, after due inquiry, of the Company or the Operating Partnership; no stop order suspending the effectiveness of the Registration Statement or the Prospectus shall be in effect and no proceedings for such purpose shall have been commenced or shall be pending before or threatened by the state securities authority of any jurisdiction, to the knowledge of the Company or the Operating Partnership; and all requests for additional information on the part of the Commission shall have been complied with to your satisfaction;
(ii) all the representations and warranties of the Company and the Operating Partnership contained in this Agreement shall be assigned true and correct, in all material respects and the Company and the Operating Partnership shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder;
(iii) there shall not have occurred any downgrading, nor shall any notice have been given of (A) any intended or potential downgrading or (B) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company or the Operating Partnership by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act;
(iv) since the respective dates as of which information is given in the Registration Statement and the Prospectus there shall not have been any material change in the capital stock, partners' equity or long-term debt of the Company, the Operating Partnership or any of the Subsidiaries on a consolidated basis, except as described or contemplated in the Prospectus, or any Material Adverse Effect, otherwise than as set forth or contemplated in the Prospectus as amended or supplemented to such Solicitation Time or at the time such offer to purchase was made, the effect of which in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus and/or the Indenture; and other than as set forth in the Prospectus, no proceedings shall be pending or, to the knowledge of the Company or the Operating Partnership, after due inquiry, threatened against the Operating Partnership or the Company or any Property before or by any federal, state or other commission, board or administrative agency, where an unfavorable decision, ruling or finding could reasonably be expected to result in a Material Adverse Effect;
(v) trading generally shall not have been suspended or materially limited on or by, as the case may be, any of the NYSE, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (B) trading of any securities of or guaranteed by the Company or the Operating Partnership shall not have been suspended on any exchange or in any over-the-counter market, (C) a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or New York State authorities, or (D) there shall not have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the judgment of such Agent or Agents or of such other purchaser, is material and adverse and which in the judgment of such Agent or Agents or of other purchaser makes it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus as amended or supplemented at the Solicitation Time or at the time such offer to purchase was made.
(b) you shall have received on and as of the Commencement Date, and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, a certificate signed by the Chairman of the Board of Directors or President or Chief Executive Officer of the Company and the Chief Financial or Accounting Officer of the Company, in their capacities as officers of the Company, on behalf of the Company for itself and as general partner of the Operating Partnership, satisfactory to you to the effect set forth in subsections 7(a)(i) - (v) of this Section and to the further effect that there has not occurred any Material Adverse Effect, otherwise than as set forth or contemplated in the Prospectus;
(c) you shall have received prior to the first sale of Securities pursuant to this Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, an opinion or opinions (satisfactory to you and counsel for the Agents), dated such date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company and the Operating Partnership, in a form to be agreed upon prior to the first sale of Securities pursuant to this Agreement.
(d) you shall have received on and as of the Commencement Date, and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, an opinion (satisfactory to you and counsel for the Agents), dated Commencement Date or Time of Delivery, as the case may be, of ▇▇▇▇▇▇▇, ▇▇▇▇▇, Battle & ▇▇▇▇▇▇, L.L.P., special Maryland counsel for the Company, to the effect that:
(i) Each of the Company and the Corporate Subsidiaries has been duly incorporated and is validly existing as a whole or corporation in undivided part, good standing under the laws of its respective jurisdiction of incorporation.
(ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option Each of the Company shall extend beyond and the maturity date of Corporate Subsidiaries has corporate power and authority to own, lease and operate its properties and other assets and to conduct the Bonds business in which it is engaged or proposes to engage, in each case, as described in the Prospectus, and the Company has the corporate power and authority to enter into and perform its obligations under this Agreement and the Indenture.
(iii) The issuance of Securities have been duly authorized by the Company on behalf of the Operating Partnership.
(iv) This Agreement and any applicable Terms Agreement was duly and validly authorized, executed and delivered by the Company's interest in , on behalf of itself and the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, Operating Partnership.
(v) The execution and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term delivery of this Agreement, to any applicable Terms Agreement and the extent of such assignment, lease, sale, transfer or other dispositionIndenture, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge performance of the Company pursuant to clause (b) shall be conditioned upon obligations and the delivery consummation of the transaction set forth herein and therein by the Company will not require, to the Authority knowledge of such counsel, any consent, approval, authorization or other order of any Maryland court, regulatory body, administrative agency or other governmental body (except as such may be required under the Securities Act or other securities laws) and did not and do not conflict with or constitute a breach or violation of or default under: (A) the Trustee charter or by-laws, as the case may be, of a certificate the Company; and (B) any applicable Maryland law, rule or administrative regulation or any order or administrative or court decree of an Independent Expert (as hereinafter defined) describing the interests so assignedwhich such counsel is aware, leasedexcept in each case for conflicts, soldbreaches, transferred violations or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person defaults that in the same aggregate would not have a Material Adverse Effect.
(vi) To the knowledge of such counsel, no Material authorization, approval, consent or a related transactionorder of any Maryland court, stating that governmental authority, agency or other entity is required in connection with the offering, issuance or sale of the Securities hereunder, except such rightsas may be required under Maryland securities, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, blue sky or real estate syndication laws.
(vii) The information in the opinion Prospectus under "Description of such Independent Expert, the Fair Value (as hereinafter defined) Common Stock," "Certain Provisions of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 Maryland Law and The Company's Articles of Incorporation and Bylaws" and "Restrictions on Transfers of Capital Stock" and in Part II of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations Registration Statement under Section 5.01 hereof, in whole or in part, at any time and from time to time, andItem 15, to the extent that it constitutes statements of any law, descriptions of statutes, rules or regulations, summaries of documents or legal conclusions, has been reviewed by such assumption counsel and, as to Maryland law, is correct in all material respects and presents fairly the information required to be disclosed therein.
(viii) The Company and each of the Corporate Subsidiaries was authorized to enter into the partnership agreement of each Partnership Subsidiary for which the Company or such Corporate Subsidiary, as the case may be, is the general partner.
(e) you shall have received prior to the first sale of Securities pursuant to this Agreement or otherwise, if called for by the Company applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, an opinion or opinions (but only satisfactory to such extentyou and counsel for the Agents), dated such date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special Illinois counsel for the aforesaid assigneeCompany and the Operating Partnership, lesseein a form to be agreed upon prior to the first sale of Securities pursuant to this Agreement.
(f) On the Commencement Date, purchaser and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other transferee shall be released from and discharged agreement, at the corresponding Time of all liability in respect of such obligations. Anything herein to the contrary notwithstandingDelivery, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall have furnished to the Authority Agents a letter, dated the date of its delivery, addressed to the Agents and in form and substance satisfactory to the Agents (and to its counsel), confirming that they are independent public accountants with respect to the Operating Partnership, the Company and the Trustee an opinion of Bond Counsel Subsidiaries as required by the Securities Act and with respect to the effect that financial and other statistical and numerical information contained in the proposed assignmentRegistration Statement and the Prospectus and containing statements and information of the type ordinarily included in accountants' "comfort letters" as set forth in the AICPA's Statement on Auditing Standards 72;
(g) You shall have received on and as of the Commencement Date, lease and in the case of a purchase of Securities by an Agent as principal pursuant to a Terms Agreement or sale will not impair otherwise, if call for by the validity applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, an opinion, dated the Commencement Date or Time of Delivery, as the case may be, of ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Agents, as to the certain matters, in a form satisfactory to the Agents.
(h) At the Commencement Date and at each Time of Delivery, the Securities shall have the ratings accorded by any "nationally recognized statistical organization," as defined by the Commission for purposes of Rule 436(g)(2) under the Act if and as specified in Schedule I hereto, and the Operating Partnership shall have delivered to ▇.▇. ▇▇▇▇▇▇ Securities Inc. a letter, dated as of such date, from each such rating organization, or other evidence satisfactory ▇.▇. ▇▇▇▇▇▇ Securities Inc., confirming that the Securities have such ratings. Since the date hereof, there shall not have occurred a downgrading in the rating assigned to the Securities or any of the Bonds Company's securities or the Operating Partnership's other securities by any such rating organization, and will not adversely affect no such rating organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the exclusion Securities or any of interest on the Bonds from gross income Company's securities or the Operating Partnership's other securities.
(i) At the Commencement Date and each Time of Delivery, counsel for federal tax purposes. After any leasethe Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities, saleas herein contemplated and related proceedings, transfer or other disposition in order to evidence the accuracy of any element or unit of the Facilitiesrepresentations or warranties, or the fulfillment of any interest thereinof the conditions, herein contained; and all proceedings taken by the Operating Partnership and the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part in connection with the issuance and sale of the Facilities Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Agents and counsel for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Agents.
Appears in 1 contract
Conditions. The Company's interest obligations of the Purchaser to consummate the transactions provided for hereby are subject, in this Agreement the discretion of the Purchaser, to the satisfaction, on or prior to the Closing Date, of each of the following conditions, any of which may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of waived by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition Purchaser:
(a) the representations and warranties in Article IV shall relieve be true and correct when made and at and as of the Company from its primary liability for its obligations under Section 5.01 hereof or Closing Date as if such representations and warranties were made at such time (except that those representations and warranties which are made as of a specific date shall be true and correct only as of such date);
(b) the Sellers shall have performed and satisfied in all material respects all agreements and covenants required hereby to be made unless the assignee, lessee, purchaser performed or other transferee, as the case may be, satisfied by them prior to or simultaneously at the Closing Date;
(c) all Consents from any Person, and all filings, registrations and notifications necessary to permit the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements shall have been obtained or made and the waiting period under the HSR Act shall have expired or been terminated;
(d) no Court Order, Action or proceeding shall have been instituted or threatened which makes the transactions contemplated by this Agreement or the Ancillary Agreements illegal or otherwise prohibited;
(e) no Person who or which is not a party to this Agreement or the Ancillary Agreements shall have commenced or threatened to commence any Action seeking to restrain or prohibit, or to obtain damages in connection with, the transactions contemplated by this Agreement or the Ancillary Agreements;
(f) there shall not have occurred any event, change or condition that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect;
(g) the Purchaser and its Representatives shall have completed the Environmental Review, and in the sole discretion of the Purchaser, the Purchaser shall be satisfied with such assignment, lease, sale, transfer or other disposition, assumes, by delivery the results of an instrument in writing satisfactory in form the Environmental Review. The Environmental Review shall have no effect whatsoever on the liability of the Sellers to the Trustee and the AuthorityPurchaser under this Agreement or otherwise for breach of any representations, all other obligations warranties or covenants of the Company hereunder Sellers hereunder;
(h) the Purchaser shall have obtained or been granted the right to use all Permits necessary for the extent operation of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if Business;
(i) the Company's interest Sellers shall have delivered the documents required to be delivered by them pursuant to Section 3.2, and the Ancillary Agreements shall be in full force and effect;
(j) each of the employees of the Sellers identified on Exhibit 16 (the "Key Employees") shall have entered into an employment agreement with the Purchaser or Purchasing Affiliate on terms satisfactory to the Purchaser and the respective Key Employee (the "Executive Employment Agreements");
(k) the Sellers shall have delivered to the Purchaser opinions of counsel licensed in each of the respective jurisdictions of organization of the Sellers, dated as of the Closing Date, substantially in the form of Exhibit 17 hereto;
(l) the Parent Agreements designated by the Purchaser shall have been terminated and the parties thereto shall have been released from all obligations thereunder and the Sellers shall have delivered to the Purchaser evidence satisfactory to the Purchaser of such termination and release;
(m) the Patent and Know-How License Agreement shall have been amended in a manner satisfactory to the Purchaser and Parent;
(n) the Sellers shall have delivered to the Purchaser such certificates of their officers to evidence compliance with the conditions set forth in this Agreement shall Article VII as may be assigned as a whole or in undivided part, reasonably be requested by the Purchaser;
(iio) the Company's interest in Purchaser shall have received from the Facilities shall be leased as a whole or in undivided part and Sellers resolutions adopted by the term of such leasehold or the term of any extension or extensions thereof at the option directors of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be soldSellers, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, evidence satisfactory to the extent of such assignmentPurchaser, lease, sale, transfer or other disposition, evidencing the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes approval of this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, certified by delivering the authorized representatives of the Sellers;
(p) Parent US Sub shall have delivered to the Authority and the Trustee the agreements or other documents required Purchaser a non-foreign affidavit pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part 1445(b)(2) of the Facilities for Code; and
(q) the purposes of this Agreement. For purposes of this Section 7.01:Parent shall have obtained the Parent Board Approval.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ocular Sciences Inc /De/)
Conditions. Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. The Company's interest respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Effective Date of the following conditions:
(a) The holders of the Common Stock of the Company entitled to vote shall have duly approved the Merger if required by applicable law.
(b) No preliminary or permanent injunction or other order by a court of competent jurisdiction which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable best efforts to have any such injunction lifted).
(c) No action shall have been taken nor shall any statute, rule or regulation have been enacted by the government of the United States or any state thereof that makes the consummation of the Merger illegal in any material respect.
(d) The applicable waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act with respect to the transactions contemplated by this Agreement may shall have expired or been terminated.
Section 7.2 Conditions to Obligations of Purchaser and Acquisition to Effect the Merger. The obligations of Purchaser and Acquisition to effect the Merger shall be assigned subject to the fulfillment at or prior to the Effective Date of the following additional conditions:
(a) The representations and warranties of the Company set forth in Article V shall be true and correct in all material respects on the Effective Date (or on such other date specified in Article V) with the same force and effect as though made on and as of such date, except for any such untrue or incorrect representations and warranties that would not have a whole or in partCompany Material Adverse Effect, and its interest Purchaser and Acquisition shall have received a certificate to that effect from the Chief Executive Officer and the Treasurer of the Company.
(b) All of the covenants and agreements of the Company to be performed or complied with pursuant to this Agreement prior to the Effective Date shall have been duly performed and complied with in all material respects, except for any such failure of performance or compliance that would not have a Company Material Adverse Effect, and Purchaser and Acquisition shall have received a certificate to that effect from the Chief Executive Officer and the Treasurer of the Company.
(c) Holders of no more than 10% of the outstanding Shares, in the Facilities may be leasedaggregate, soldshall have filed with the Company a written objection to the Merger and made a written demand for payment of the fair value of his shares in the manner permitted by the CBCA.
(d) All of the Directors of the Company on the Effective Date shall have resigned.
(e) Since the date of this Agreement, transferred or otherwise disposed of by there shall have been no Company Material Adverse Effect.
(f) The Company shall have received an opinion from a reputable investment banking firm satisfactory to the Company as to the fairness, from a whole financial point of view, of the Merger Consideration to be paid to the Company's shareholders.
Section 7.3 Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the fulfillment at or in part (whether an interest in a specific element or unit or an undivided interest), prior to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition the Effective Date of the following additional conditions.
(a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) The representations and warranties of Purchaser and Acquisition set forth in Article IV shall be true and correct in all material respects on the Effective Date (or on such other date specified in Article IV) with the same force and effect as though made unless the assigneeon and as of such date, lessee, purchaser except for any such untrue or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee incorrect representations and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed ofwarranties that would not have a Purchaser Material Adverse Effect, and the Company shall have received certificates to that effect from the Chief Executive Officer and the Treasurer of Purchaser and the President of Acquisition.
(b) All of the covenants and agreements of Purchaser and Acquisition to be released of and discharged from such obligations performed or complied with pursuant to this Agreement prior to the extent so assumed. Notwithstanding the foregoingEffective Date shall have been duly performed and complied with in all material respects, (a) if (i) the Company's interest in this Agreement shall be assigned as except for any such failure of performance or compliance that would not have a whole or in undivided partPurchaser Material Adverse Effect, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond have received certificates to that effect from the maturity date Chief Executive Officer and the Treasurer of Purchaser and the Bonds or President of Acquisition.
(iiic) the Company's interest The Commitment shall remain in the Facilities full force and effect and shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:funded.
Appears in 1 contract
Conditions. The Company's interest in this Agreement obligation of Seller to consummate the Acquisition on the Closing Date is subject to the satisfaction of the following conditions (any or all of which may be assigned as a whole or in partwaived by Seller, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the sole option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereofSeller, in whole or in part, at any time and from time to time, and, part to the extent permitted by applicable law):
(i) each of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee representations and warranties of Buyer contained herein shall be released from true and discharged correct in all material respects on and as of the Closing Date with the same force and effect as though the same had been made on and as of the Closing Date;
(ii) Buyer shall have performed and complied, in all liability in respect material respects, with the covenants and provisions of such obligations. Anything herein this Agreement required to be performed or complied with by it between the contrary notwithstandingdate hereof and the Closing Date;
(iii) Seller shall have received the opinions of counsel for Buyer, dated the Company shall not make any assignmentClosing Date, lease or sale as provided substantially in the immediately preceding paragraph unless it forms of EXHIBITS H-1 AND H-2 hereto;
(iv) Seller shall have furnished to the Authority and the Trustee an opinion of Bond Counsel received a certificate to the effect that set forth in clauses (i) and (ii) above, dated the proposed assignment, lease or sale will not impair the validity under the Act Closing Date and signed by a duly authorized officer of Buyer;
(v) Seller shall have received a certificate of the Bonds Secretary of Buyer, dated the Closing Date, setting forth resolutions of the Board of Directors of Buyer authorizing the execution and will delivery of this Agreement and each document and instrument required to be executed and delivered by Buyer hereunder and the consummation of the transactions contemplated hereby and thereby, and certifying that such resolutions were duly adopted and have not adversely affect been rescinded or amended as of the exclusion Closing Date;
(A) no Legal Proceeding shall have been instituted against Seller seeking to restrain or prohibit or to obtain damages with respect to the consummation of interest the transactions contemplated by this Agreement and (B) there shall not be in effect any Order of a Government Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement;
(vii) Buyer shall have entered into an employment agreement with Shareholder in accordance with Section 6.4;
(viii) since the date of this Agreement, no event or circumstance shall have occurred that has had, or is reasonably likely to have, a material adverse effect on the Bonds from gross income for federal tax purposes. After any leasebusiness, saleassets, transfer properties, liabilities, financial condition or other disposition results of any element or unit operations of Buyer and its subsidiaries taken as a whole (the parties hereto acknowledge and agree that if the condition to Buyer's obligation to consummate the Acquisition set forth in Section 7.1(vi) has not been satisfied as of the Facilities, or any interest thereinClosing Date and Buyer elects to waive such condition and consummate the Acquisition, the Company may, at its option, cause failure of such element or unit, or interest therein, condition to be satisfied shall in no longer event be deemed to have, or be part reasonably likely to have, a material adverse effect on the business, assets, properties, liabilities, financial condition or results of operations of Buyer and its subsidiaries taken as a whole); and
(ix) Buyer shall have executed and delivered to Seller (A) all documents to be delivered at the Facilities for Closing in accordance with the purposes terms of this Agreement by delivering to the Authority and the Trustee the agreements or (B) such other documents required pursuant and instruments as Seller may reasonably request and which Buyer can obtain with reasonable commercial efforts in order to Section 7.02 hereof together with an instrument signed consummate the transactions contemplated by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Conditions. Section 7.1 Conditions to Each Party's Obligation to Effect the Merger. The Company's interest respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions:
(a) The Company Requisite Vote shall have been obtained.
(b) The waiting period applicable to the consummation of the Merger shall have expired or been terminated under the HSR Act.
(c) None of the parties hereto shall be subject to any decree, order or injunction of a court of competent jurisdiction, U.S. or foreign, which prohibits the consummation of the Merger; and no statute, rule or regulation shall have been enacted by any governmental authority of competent jurisdiction which prohibits or makes unlawful the consummation of the Merger.
(d) The Registration Statement shall have become effective and no stop order with respect thereto shall be in effect and no proceedings for that purpose shall have been commenced or threatened by the SEC.
(e) The Parent Common Shares to be issued pursuant to the Merger shall have been authorized for listing on the New York Stock Exchange, subject to official notice of issuance.
Section 7.2 Conditions to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the fulfillment or waiver by the Company at or prior to the Closing Date of the following conditions:
(a) (i) Parent shall have performed in all material respects its covenants and agreements contained in this Agreement may required to be assigned performed on or prior to the Closing Date and (ii) the representations and warranties of Parent and Sub contained in this Agreement and in any document delivered in connection herewith (A) to the extent qualified by Parent Material Adverse Effect or any other materiality qualification shall be true and correct and (B) to the extent not qualified by Parent Material Adverse Effect or any other materiality qualification shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing Date (except for representations and warranties made as of a specified date, which need be true and correct only as of the specified date) ; provided that the condition -------- set forth in clause (ii) shall be deemed to have been satisfied unless such breaches of representations and warranties (without regard to Parent Material Adverse Effect or any other materiality qualification or threshold), individually or in the aggregate, would reasonably be expected to have a Parent Material Adverse Effect; and the Company shall have received a certificate of Parent, executed on its behalf by its President or a Senior Vice President of Parent, dated the Closing Date, certifying to such effect.
(b) The Company shall have received the opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Company, in form and substance reasonably satisfactory to the Company, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Closing Date, a copy of which shall be furnished to Parent, to the effect that (i) the Merger will qualify for United States federal income tax purposes as a whole reorganization within the meaning of Section 368(a) of the Code and Parent, Sub and the Company will be "parties" to a reorganization within the meaning of Section 368(b) of the Code, (ii) no gain or in part, and its interest in the Facilities may loss will be leased, sold, transferred or otherwise disposed of recognized by the Company as in connection with the Merger and (iii) a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations shareholder of the Company hereunder that is a United States Person (within the meaning of Section 7701(a)(30) of the Code) and that receives both (A) Parent Common Shares and (B) cash in the Merger in exchange for Company Shares will recognize realized gain only to the extent of the interest assignedlesser of such realized gain or the cash received in the exchange (but will not recognize any loss). In rendering such opinion, leasedsuch counsel shall be entitled to receive and rely upon representations of officers of the Company, sold, transferred Sub and Parent as to such matters as such counsel may reasonably request.
Section 7.3 Conditions to Obligation of Parent to Effect the Merger. The obligations of Parent and Sub to effect the Merger shall be subject to the fulfillment or otherwise disposed of, waiver by Parent at or prior to the Closing Date of the following conditions:
(i) The Company shall have performed in all material respects its covenants and agreements contained in this Agreement required to be performed on or prior to the Closing Date and (ii) the representations and warranties of the Company shall be released of contained in this Agreement and discharged from such obligations in any document delivered in connection herewith (A) to the extent so assumed. Notwithstanding qualified by Company Material Adverse Effect or any other materiality qualification shall be true and correct and (B) to the foregoingextent not qualified by Company Material Adverse Effect or any other materiality qualification shall be true and correct in all material respects, in each case as of the date of this Agreement and as of the Closing Date (aexcept for representations and warranties made as of a specified date, which need be true and correct only as of the specified date); provided that the condition set -------- forth in clause (ii) if shall be deemed to have been satisfied unless such breaches of representations and warranties (without regard to Company Material Adverse Effect or any other materiality qualification or threshold), individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect; and Parent shall have received a certificate of the Company, executed on its behalf by its President or a Vice President of the Company, dated the Closing Date, certifying to such effect.
(b) Parent shall have received the opinion of McGuireWoods LLP, counsel to Parent, in form and substance reasonably satisfactory to Parent, on the basis of certain facts, representations and assumptions set forth in such opinion, dated the Closing Date, a copy of which will be furnished to the Company, to the effect that (i) the Company's interest in this Agreement shall be assigned Merger will qualify for United States federal income tax purposes as a whole or in undivided partreorganization within the meaning of Section 368(a) of the Code and Parent, Sub and the Company will be "parties" to a reorganization within the meaning of Section 368(b) of the Code and (ii) no gain or loss will be recognized in connection with the Merger by any corporation which is a party to the reorganization. In rendering such opinion, such counsel shall be entitled to receive and rely upon representations of officers of the Company's interest in the Facilities shall be leased , Sub and Parent as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (matters as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company counsel may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:reasonably request.
Appears in 1 contract
Conditions. The Company's interest in this Agreement may obligation of Bank to make any Loan hereunder is subject to the performance by Borrower of its obligations to be assigned as a whole performed hereunder and under the Note and the other Credit Documents on or in part, before the date of such Loan and its interest in to the Facilities may be leased, sold, transferred or otherwise disposed satisfaction of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition following further conditions:
(a) The representations and warranties contained herein, in the Note and in the other Credit Documents shall relieve be true on and as of the Company from its primary liability date of each Loan hereunder with the same effect as though made on and as of each such date; on each such date no "Event of Default" under and as defined in the Note and no event, act or condition which with notice or the passage of time or both would constitute such an Event of Default shall have occurred and be continuing or exist or shall occur or exist after giving effect to the Loan to be made on such date; and any request for its obligations borrowing under Section 5.01 hereof or 2.(b) below shall constitute a certification by Borrower to both such effects.
(b) Borrower shall have provided Bank with written notice (or telephonic notice confirmed in writing) of the proposed Loan specifying the principal amount thereof and the proposed date thereof, which notice shall be made unless received by Bank at its designated office no later than 1:00 p.m., local time at the assigneeplace where the proposed Loan is to be payable, lessee, purchaser or other transferee, on the date (which shall be a day on which Bank is opened for business ) of such proposed Loan. Such notice shall contain a certification as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations amounts of the Company hereunder then current Eligible Accounts and Eligible Inventory. In the event Bank receives telephonic notice, Bank may act in reliance upon such telephonic notice, provided ▇▇▇▇ has acted in good faith.
(c) The conditions, if any, specified in any Supplement hereto and in the Note or any Credit Document shall have been met to the extent satisfaction of Bank.
(d) All legal details and proceedings in connection with the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in transactions contemplated by this Agreement shall be assigned as a whole satisfactory to Bank and Bank shall have received all such counterpart originals or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole certified or in undivided part and the term other copies of such leasehold or the term documents and records of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest proceedings in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of connection with such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating thattransactions, in the opinion of such Independent Expertform and substance satisfactory to Bank, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company Bank may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:time request.
Appears in 1 contract
Conditions. The several obligations of the Selling Stockholder to sell the Shares, to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the conditions that the Registration Statement shall have become effective prior to the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date (i) a certificate, dated the Closing Date and signed by an executive officer of the Company's interest , to the effect set forth in Section 6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (ii) a certificate, dated the Closing Date and signed by an executive officer of GE, to the effect that the representations and warranties of GE contained in this Agreement are true and correct as of the Closing Date and that GE has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. Each officer signing and delivering each such certificate may be assigned rely upon the best of his or her knowledge as a whole or to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in partform and substance reasonably satisfactory to the Representatives.
(d) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for GE, dated the Closing Date, in form and its interest substance reasonably satisfactory to the Representatives.
(e) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably satisfactory to the Representatives. With respect to the negative assurance letter referenced in Section 6(c) above, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may state that their opinions and beliefs in such letter are based upon their participation in the Facilities preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(d) above, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon an opinion or opinions of counsel for the Selling Stockholder and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of the Selling Stockholder contained herein and in other documents and instruments; provided that (A) each such counsel for the Selling Stockholder is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of any such other documents and instruments shall be leaseddelivered to you and shall be in form and substance satisfactory to your counsel and (D) ▇▇▇▇, sold▇▇▇▇▇, transferred or otherwise disposed Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall state in their opinion that they are justified in relying on each such other opinion. The opinions and negative assurance letters, as applicable, of by ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP described in Sections 6(c) and 6(d) above (and any opinions of counsel for the Company as a whole or Selling Stockholder referred to in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (bimmediately preceding paragraph) shall be made unless rendered to the assignee, lessee, purchaser Underwriters at the request of the Company or other transfereethe Selling Stockholder, as the case may be, prior to and shall so state therein.
(f) The Underwriters shall have received, on each of the date hereof and the Closing Date, from Deloitte & Touche LLP, independent registered public accountants for the Company, one or simultaneously with such assignmentmore letters dated the date hereof or the Closing Date, leaseas the case may be, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form and substance satisfactory to the Trustee Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that each such letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(g) The “lock-up” agreements, each substantially in the forms attached as Exhibit A hereto, between (i) you and GE and (ii) you and certain officers and directors of the Company each listed in Schedule III hereto, relating to sales and certain other dispositions of shares of Common Stock and/or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(h) The Underwriters shall have received such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Firm Shares and other matters related to the issuance of such Firm Shares.
(i) The Debt-for-Equity Exchange shall have been consummated (i) in accordance with the terms and conditions of the Exchange Agreement and (ii) consistent with the description thereof set forth in the Time of Sale Prospectus and the Prospectus.
(j) The Financial Industry Regulatory Authority, all other Inc. has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Shares.
(k) The several obligations of the Company Underwriters to purchase Additional Shares hereunder are subject to the extent delivery to you on the applicable Option Closing Date of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following:
(i) (A) a certificate, dated the Option Closing Date and signed by an executive officer of the Company's interest in this Agreement shall be assigned , confirming that the certificate delivered on the Closing Date pursuant to clause 6(b)(i) above remains true and correct as of such Option Closing Date and (B) a whole or in undivided partcertificate, dated the Option Closing Date and signed by an executive officer of GE, confirming that the certificate delivered on the Closing Date pursuant to clause 6(b)(ii) above remains true and correct as of such Option Closing Date;
(ii) an opinion and negative assurance letter of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company's interest , each dated the Option Closing Date, in connection with the Facilities shall Additional Shares to be leased purchased on such Option Closing Date and otherwise to the same effect as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or opinion required by Section 6(c) above;
(iii) an opinion of ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for GE, dated the Option Closing Date, in connection with the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iv) an opinion and negative assurance letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, each dated the Option Closing Date, in connection with the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(v) one or more letters dated the Option Closing Date, in form and substance satisfactory to the Representatives, from Deloitte & Touche LLP, independent registered public accountants for the Company's interest , substantially in the Facilities same form and substance as the letter furnished to the Underwriters pursuant to clause 6(f) hereof; provided that each such letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to such Option Closing Date; and
(vi) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares to be soldsold on such Option Closing Date and other matters related to the issuance of such Additional Shares. In addition to the above, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof Underwriters to purchase and pay for the remaining term of Shares pursuant to this Agreement, Agreement are subject to the extent Selling Stockholder having received a counterpart of such assignmentthe Exchange Agreement that shall have been executed and delivered by a duly authorized officer of GE, lease, sale, transfer or other disposition, and GE having delivered the Company shall be released from and discharged of all liability in respect of such obligations Shares to the extent so assumed (but only to such extent); provided, however, that Selling Stockholder in accordance with the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Exchange Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Sources: Underwriting Agreement (GE HealthCare Technologies Inc.)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed 6.1 Conditions to Obligations of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve Effect the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other Merger. The obligations of the Company hereunder to effect the Merger shall be subject to the extent fulfillment or waiver at or prior to the Effective Time of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, additional following conditions:
(a) if Each representation and warranty set forth in Article III shall be true and correct in all material respects as of the Closing.
(b) Purchasers shall have performed in all material respects each covenant or other obligation required to be performed by them pursuant to the Transaction Documents prior to the Closing.
(c) The consummation of the transactions contemplated by the Transaction Documents shall not be prohibited by any Legal Requirement or subject the Company to any penalty or liability arising under any Legal Requirement or imposed by any Government Entity.
(d) No action, suit or proceeding shall be pending or threatened before any Government Entity the result of which could prevent or prohibit the consummation of any transaction pursuant to the Transaction Documents, cause any such transaction to be rescinded following such consummation or adversely affect Purchasers performance of their obligations pursuant to the Transaction Documents, and no judgment, order, decree, stipulation, injunction or charge having any such effect shall exist.
(e) All filings, notices, licenses, consents, authorizations, accreditation, waivers, approvals and the like of, to or with any Government Entity or any other Person that are required for the Purchasers to consummate the Merger or any other transaction contemplated by the Transaction Documents or to own the Company Shares or to conduct the Business thereafter (the “Purchasers’ Consents”) shall have been duly made or obtained.
(f) Eos shall have delivered to the Company a Certificate dated the Closing Date, signed by the Chairman of Eos stating that the conditions set forth in Section 6.1 (a) through (e) above and Section 6.1(m) through (u) below have been satisfied.
(g) Eos shall have delivered to the Company a copy of the resolutions duly adopted by Eos’ board of directors authorizing Eos’ execution, delivery and performance of the Transaction Documents to which Eos is a party and the consummation of the Merger and all other transactions contemplated by the Transaction Documents, as in effect as of the Closing, certified by an officer of Eos.
(h) Eos shall have delivered to the Company a copy of the resolutions duly adopted by Newco’s board of directors authorizing Newco’s execution, delivery and performance of the Transaction Documents to which Newco is a party and the consummation of the Merger and all other transactions contemplated by the Transaction Documents, as in effect as of the Closing, certified by an officer of Newco.
(i) Eos shall have delivered to the Company a copy of the resolutions duly adopted by Eos as the stockholder of Newco approving the Merger and this Agreement, certified by an officer of Newco.
(j) Eos shall have delivered to the Company a certificate (dated not more than five business days prior to the Closing) of the Secretary of State of the State of Delaware as to the good standing of Eos in Delaware and a certificate (dated not more than five business days prior to the Closing) of the Treasurer of the State of New Jersey as to the good standing of Newco in New Jersey.
(k) Eos shall have delivered to the Company copies of the Purchasers’ Consents.
(l) On the Closing Date, Eos shall have unrestricted cash of no less than $2,300,000 after giving effect to payments owed by Eos to the Eos Bridge Lenders and the costs of the transactions contemplated by this Agreement and restricted cash of no less than $1,200,000 for certain specified costs approved by management.
(m) Eos shall have restructured its bonus compensation obligation to Peter Lund, Chairman of the Board of Eos, i▇ ▇ ▇▇▇▇▇▇ reasonably satisfactory to the Board of Directors of the Company's interest .
(n) Eos shall have restructured Eos’ promissory note made to Avon Products, Inc., originally dated January 15, 1999, and amended on June 21, 2001 (the “Avon Note”), in this Agreement shall be assigned as a whole or in undivided part, (ii) manner reasonably satisfactory to the Board of Directors of the Company's interest .
(o) Eos shall have obtained proceeds from a Private Placement with gross proceeds to Eos of at least $7.5 million from the sale of 15,000,000 shares of Eos Common Stock.
(p) Eos shall have entered into the Registration Rights Agreement, substantially in the Facilities shall be leased form of Exhibit 1 to the Investors Representation Certificate with Registration Rights Agreement, the form of which is attached hereto as a whole or in undivided part and Exhibit A, with each of the term of such leasehold or the term of any extension or extensions thereof at the option holders of the Company Common Stock, or their assignees, providing for registration rights with respect to the Merger Consideration on terms no less favorable than the registration rights granted to the investors in the Private Placement. The rights granted to the recipients of the Merger Consideration shall extend beyond be comparable to the maturity rights granted to the investors in the Private Placement with respect to the Eos Common Stock in all respects.
(q) After giving effect to the closing of the Private Placement and the issuance of the Merger Consideration, there shall be no more than 100,000,000 shares of Eos Common Stock outstanding on a fully diluted basis.
(r) The Company shall have received the Tax Opinion Letter.
(s) The Merger shall have been approved and adopted by the requisite vote of the holders of the Company’s Common Stock prior to the Effective Time.
(t) At or prior to Closing, Eos shall have satisfied its short-term bridge loans though a combination of cash payment and the issuance to the Eos Bridge Lenders of Series D Preferred Stock (the “Series D Preferred Stock”) with a liquidation preference not to exceed $2.5 million plus the accrued interest on its short-term bridge loans to the date of issuance of the Bonds or Series D Preferred Stock, subject to increase thereafter at a rate of 13% per annum.
(iiiu) PNC Bank, as lender to the Company's interest in the Facilities , shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, have consented to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Merger.
Appears in 1 contract
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other The obligations of the Company hereunder to consummate the transactions contemplated by this Agreement, including the Transaction, shall be subject to the extent fulfillment of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following conditions:
(i) The representations and warranties of the Company's interest Holders set forth in Section 3 hereof shall be true and correct in all material respects on and as of the Closing and a certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, to be taken by the Holders in connection with the consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be assigned obtained by the Company or the Holders shall have been obtained in form and substance reasonably satisfactory to the Company.
(iii) Shareholder Approval shall be obtained by the necessary affirmative vote of the shareholders of the Company as described above in Section 2(c).
(iv) The Holders shall have delivered to the Company any and all documentation evidencing the Tranche C Debt and certificates representing the Series A Preferred Stock, together with stock powers medallion guaranteed, for cancellation.
(v) All necessary documentation, including UCC-3 termination statements, shall have been filed terminating the security interest evidenced by the Tranche C Debt.
(vi) The Holders shall have delivered the Lockup Agreements (defined below).
(b) The obligation of the Holders to consummate the transactions contemplated by this Agreement, including the Transaction, shall be subject to the fulfillment of the following conditions:
(i) The representations and warranties of the Company set forth in Section 2 hereof shall be true and correct in all material respects on and as of the Closing and a whole or in undivided part, certificate certifying such shall be delivered.
(ii) All proceedings, corporate or otherwise, required to be taken by the Company's interest Company on or prior to such date in connection with the Facilities consummation of the transactions contemplated by this Agreement shall have been duly and validly taken and all necessary consents, approvals or authorizations of any governmental or regulatory authority or other third party required to be obtained by the Company or the Holders shall have been obtained in form and substance reasonably satisfactory to the Holders.
(iii) Shareholder Approval shall be leased as a whole or in undivided part and obtained by the term necessary affirmative vote of such leasehold or the term of any extension or extensions thereof at the option shareholders of the Company shall extend beyond the maturity date of the Bonds or as described above in Section 2(c).
(iiiiv) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the The Company shall have caused the Debt Exchange Shares and Warrant Shares to be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities approved for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest listing on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, NYSE Amex or any interest therein, national securities exchange on which the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Common Stock is then listed.
Appears in 1 contract
Sources: Debt Exchange and Preferred Stock Conversion Agreement (Frederick's of Hollywood Group Inc /Ny/)
Conditions. The Company's interest 3.1 This Settlement Agreement shall not be deemed in any respect to constitute an admission by any party that any allegation or contention in this proceeding is true or false. Except as specified in this Settlement Agreement may be assigned as a whole or in partto accomplish the customer benefit intended by this Settlement Agreement, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed entry of an order by the Company Department approving the Settlement Agreement shall not in any respect constitute a determination by the Department as a whole to the merits of any other issue raised in this proceeding.
3.2 The making of this Settlement Agreement establishes no principles and shall not be deemed to foreclose any party from making any contention in any future proceeding or investigation, except as to those issues and proceedings that are stated in part this Settlement Agreement as being specifically resolved and terminated by approval of this Settlement Agreement.
3.3 This Settlement Agreement is the product of settlement negotiations. The Settling Parties agree that the content of those negotiations (whether an interest including any workpapers or documents produced in a specific element or unit or an undivided interest), to any Person; provided, howeverconnection with the negotiations) are confidential, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery all offers of an instrument in writing satisfactory in form settlement are without prejudice to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term position of any extension party or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds participant presenting such offer or (iii) the Company's interest participating in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to timediscussion, and, except to enforce rights related to this Settlement Agreement or defend against claims made under this Settlement Agreement, that they will not use the extent content of those negotiations in any such assumption manner in these or other proceedings involving one or more of the parties to this Settlement Agreement, or otherwise.
3.4 The provisions of this Settlement Agreement are not severable. This Settlement Agreement is conditioned on its approval in full by the Company (but only to such extent)Department. This Settlement Agreement is also contingent upon the provision of accurate and truthful information by the Companies during the settlement negotiation process.
3.5 If the Department does not approve the Settlement Agreement in its entirety by December 30, the aforesaid assignee2005, lessee, purchaser or other transferee this filing shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be withdrawn and shall not constitute a part of the Facilities record in any proceeding or used for any other purpose.
3.6 To the purposes extent permitted by law, the Department shall have its usual jurisdiction to implement the terms of this Settlement Agreement. Nothing in this Settlement Agreement, however, shall be construed to prevent or delay the Attorney General from pursuing any cause of action related to this Settlement Agreement by delivering in court under ▇.▇. ▇. 93A or otherwise.
3.7 From time to time during the Authority term of this Settlement Agreement, the Attorney General and LEAN may each request, orally or in writing, that the Companies respond to not more than 20 informal information requests, including sub-parts, per calendar month regarding any matter related to this Settlement Agreement, the filing or subsequent compliance filings and rates, charges or tariffs, and the Trustee Companies shall answer these information requests in a reasonably prompt manner, not to exceed 21 calendar days from issuance.
3.8 Under no circumstances shall: (1) any charge under this Settlement Agreement or tariffs promulgated hereunder recover costs that are collected by the agreements Companies more than once, or through some other documents required pursuant to Section 7.02 hereof together with an instrument signed rate, charge or tariff; or (2) any charge recover costs more than once in any other rate, charge or tariff collected by an Authorized Company Representative stating the Companies, it being acknowledged by the Settling Parties that such element or unitcollection(s), or interest thereinunless fully refunded with interest, as soon as reasonably possible, shall no longer constitute a breach of this Settlement Agreement when discovered and generally known, and be deemed to be violate the involved tariffs.
3.9 Notwithstanding any provision in this Settlement Agreement to the contrary, no part of this Settlement Agreement shall be interpreted to interfere with the Facilities Attorney General’s rights to petition the Department under ▇.▇. ▇. 164, section 93, or otherwise under law or regulation, for a review of the purposes of this Agreement. For purposes of this Section 7.01:Companies or any reason.
Appears in 1 contract
Sources: Settlement Agreement (Nstar/Ma)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, obligation of the Investor to purchase and its interest in acquire the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) Shares hereunder shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form subject to the Trustee condition that all representations and the Authority, all warranties and other obligations statements of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released true and correct as of and discharged from such on each of the date of this Agreement and the date of the Closing, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the extent so assumed. Notwithstanding the foregoing, following additional conditions:
(a) if (iThe Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Company's interest in this Agreement Securities Act within the applicable time period prescribed for such filing, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall be assigned as a whole have been issued and no proceeding for that purpose shall have been initiated or in undivided partthreatened by the Commission, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or Investor shall have received the term of any extension or extensions thereof at Prospectus in accordance with the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and federal securities laws.
(b) Prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, which would constitute a Material Adverse Effect, and that makes it impracticable to market the Shares on the terms and in the event that manner contemplated in the assigneeProspectus.
(c) No action shall have been taken and no statute, lesseerule, purchaser regulation or other transferee order shall assume the obligations have been enacted, adopted or issued by any governmental agency or body which would, as of the Company under Section 5.01 hereof for Closing Date, prevent the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer issuance or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge sale of the Company pursuant Shares or materially and adversely affect or reasonably be believed to clause (b) shall be conditioned upon the delivery by the Company to the Authority materially and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion business or operations of interest the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the issuance or sale of the Shares or materially and adversely affect or reasonably be believed to materially and adversely affect the business or operations of the Company.
(d) The Investor shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP, counsel to the Company, such counsel’s written opinion and written statement, addressed to the Investor and dated the Closing Date, in form and substance as set forth in Exhibit B.
(e) The Shares shall have been authorized for quotation on the Bonds from gross income Nasdaq Global Market, Inc.
(f) The JV Agreement and the agreements contemplated thereby, and the Services Agreement shall have been executed and delivered by the parties thereto.
(g) The actions taken by the Company’s board of directors to pre-approve the transactions contemplated by this Agreement for federal tax purposes. After any lease, sale, transfer or other disposition purposes of any element or unit Section 203 of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority DGCL and the Trustee the agreements Company’s Shareholder Rights Agreement shall not have been amended or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:modified in any respect and remain in full force and effect.
Appears in 1 contract
Conditions. SECTION 9.1 Conditions to Each Party's Obligation to Effect the Merger. The Company's interest in this Agreement may respective obligations of each party to effect the Merger shall be assigned as a whole subject to the fulfillment at or in part, and its interest in prior to the Facilities may be leased, sold, transferred or otherwise disposed Closing Date of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition following conditions:
(a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof no preliminary or (b) shall be made unless the assignee, lessee, purchaser permanent injunction or other transfereeorder or decree by any federal or state court which prevents the consummation of the Merger shall have been issued and remain in effect (each party agreeing to use its reasonable efforts to have any such injunction, as the case may beorder or decree lifted); no action shall have been taken, prior to and no statute, rule or simultaneously with such assignment, lease, sale, transfer or other disposition, assumesregulation shall have been enacted, by delivery any state or federal government or governmental agency in the United States which would prevent the consummation of an instrument in writing satisfactory in form to the Trustee Merger or make the consummation of the Merger illegal;
(c) all governmental waivers, consents, orders and approvals legally required for the consummation of the Merger and the Authority, transactions contemplated hereby shall have been obtained and be in effect at the Effective Time;
(d) all other obligations required consents and approvals of third parties to material contracts with the Company hereunder to the extent of the interest assigned, leased, sold, transferred Parent or otherwise disposed of, and the Company shall have been obtained and be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof effect at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent)Effective Time; provided, however, that the release failure to obtain such consents or approvals shall not be due to the default or delay of the party responsible for obtaining such consents and discharge approvals; and
(e) ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Martini, independent certified public accountants for Parent and Subsidiary, shall have delivered a letter, dated the Closing Date, addressed to Parent, in form and substance reasonably satisfactory to Parent, the Company and the Seller, stating that the Merger will qualify as a pooling- of-interests transaction under APB 16.
SECTION 9.2 Conditions to Obligation of the Company pursuant to clause Effect the Merger. Unless waived by the Seller, the obligation of the Company and the Seller to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of the following additional conditions:
(a) Parent and Subsidiary shall have performed in all respects their agreements contained in this Agreement required to be performed on or prior to the Closing Date and the representations and warranties of Parent and Subsidiary contained in this Agreement shall be true and correct in all material respects on and as of the date made and on and as of the Closing Date as if made at and as of such date, and the Company shall have received a certificate of the Chairman of the Board of Directors of Parent and of the Chairman of the Board of Directors of Subsidiary, in form and substance reasonably satisfactory to the Company, to that effect;
(b) since the date hereof, there shall have been no changes that constitute, and no event or events shall have occurred which have resulted in or constitute, a material adverse change in the business, operations, properties, assets, condition (financial or other) or results of operations of Parent and its subsidiaries, taken as a whole;
(c) Parent shall take all action necessary to assure that the members of the current Advisory Board, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall resign;
(d) Parent shall execute a Note, substantially in the form of Exhibit A, pursuant to which it shall borrow funds from the Seller, in an amount sufficient to repay in full all amounts owed to Magellan Finance Corporation ("Magellan") by Earth Care Global Holdings, Inc., an entity that merged into a wholly-owned subsidiary of Parent ("Earth Care"), pursuant to the terms of the Amendment to Second Loan and Option Agreement dated as of March 29, 1996 by and between Magellan and Earth Care and all other agreements relating thereto (the "Magellan Loan");
(e) Parent shall repay the Magellan Loan in full; and The Company shall have received the written resignations, effective as of Closing, of each director of Parent other than those listed in Schedule 9.2.
SECTION 9.3 Conditions to Obligations of Parent and Subsidiary to Effect the Merger. Unless waived by Parent and Subsidiary, the obligations of Parent and Subsidiary to effect the Merger shall be conditioned upon subject to the delivery by fulfillment at or prior to the Effective Time of the additional following conditions:
(a) the Company and the Seller shall have performed in all respects their agreements contained in this Agreement required to be performed on or prior to the Authority Closing Date and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy representations and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations warranties of the Company representing indebtedness for borrowed money or for and the deferred purchase price Seller contained in this Agreement shall be true and correct in all material respects on and as of property which are being assumed by the date made and on and as of the Closing Date as if made at and as of such Person; provideddate, further, that after any such assumption, release and discharge as aforesaid, Parent shall have received a Certificate of the Vice President of the Company may again assume such obligations under Section 5.01 and of the designated officers of the Seller, in form and substance reasonably satisfactory to Parent, to that effect;
(b) since the date hereof, there shall have been no changes that constitute, and no event or events shall have occurred which have resulted in whole or constitute, a material adverse change in partthe business, at any time and from time to timeoperations, andproperties, to the extent assets, condition (financial or other) or results of any such assumption by operations of the Company and its subsidiaries, taken as a whole;
(but only c) the Seller shall loan funds to such extent)Parent in an amount sufficient to repay the Magellan Loan; and
(d) Parent shall have received the written resignations, the aforesaid assigneeeffective as of Closing, lessee, purchaser or other transferee shall be released from of each director and discharged officer of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided other than those listed in the immediately preceding paragraph unless it shall have furnished to the Authority Schedules 2.3 and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:2.4.
Appears in 1 contract
Conditions. The obligation of any Agent, as agent of the Company's interest in this , at any time (“Solicitation Time”) to solicit offers to purchase the Notes, the obligation of any Agent to purchase Notes as principal pursuant to any Terms Agreement may be assigned as a whole or in partotherwise, and its interest the obligation of any other purchaser to purchase Notes shall in each case be subject: (1) to the condition that all representations and warranties of the Company herein and all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are accurate (i) in the Facilities may be leasedcase of an Agent’s obligation to solicit offers to purchase Notes, soldat and as of such Solicitation Time and (ii) in the case of any Agent’s or any other purchaser’s obligation to purchase Notes, transferred or otherwise disposed at and as of by the time the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), accepts the offer to any Person; provided, however, that no purchase such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transfereeNotes and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or simultaneously time of purchase, as the case may be, the Company shall have complied with such assignment, lease, sale, transfer all its agreements and all conditions on its part to be performed or other disposition, assumes, by delivery of an instrument in writing satisfactory in form satisfied hereunder; and (3) to the Trustee following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the Authoritycase may be:
(i) the Prospectus as amended or supplemented (including, all other obligations if applicable, the Pricing Supplement) with respect to such Notes shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act;
(iii) there shall not have occurred any change or any development in or affecting particularly the business or properties of the Company hereunder to or its subsidiaries which, in the extent judgment of the interest assignedapplicable Agent, leasedmaterially impairs the investment quality of the Notes; and
(iv) (A) trading generally shall not have been suspended on or by, soldas the case may be, transferred any of the New York Stock Exchange or otherwise disposed ofthe NASDAQ Stock Market, minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities shall not have been required, on the New York Stock Exchange or the NASDAQ Stock Market, by such Exchange or by order of the Commission or any other governmental authority having jurisdiction; (B) trading in any securities of the Company shall not have been suspended by the Commission or a national securities exchange or in any over-the-counter market; (C) any major disruption of settlements of securities shall not have occurred and a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or New York State authorities; or (D) there shall not have occurred any outbreak or escalation of hostilities in which the United States is involved, a declaration of war by Congress, any major act of terrorism against the United States, any other substantial national or international calamity or crisis or any other event or occurrence of a similar character if, in the judgment of such Agent or Agents or of such other purchaser, the effect of any such outbreak, escalation, declaration, calamity or other event or occurrence makes it impracticable or inadvisable to market the Notes on the terms and in the manner contemplated in the General Disclosure Package or the Prospectus as amended or supplemented at the Solicitation Time or at the time such offer to purchase was made. Promptly after the determination by any such Agent or other purchaser that it is impractical or inadvisable to market the Notes, such Agent or other purchaser shall notify the Company of such determination in writing; but the omission so to notify the Company shall not act to modify the rights of the Agent or other purchaser under this Section 6(a)(iv)(A).
(b) On the Commencement Date, and in the case of a purchase of Notes by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, the General Counsel and Secretary of the Company, any Vice President and Assistant Secretary of the Company (it being understood that anyone giving an opinion on behalf of the Company shall be released of and discharged from such obligations an attorney licensed in Ohio or New York, as applicable) and/or Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, Counsel to the extent so assumed. Notwithstanding the foregoingCompany, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest indicated in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it applicable Prospectus Supplement shall have furnished to the Authority relevant Agent or Agents their written opinion(s), dated the Commencement Date or Time of Delivery, as the case may be, in form and the Trustee an opinion of Bond Counsel substance satisfactory to such Agent or Agents, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of Ohio and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; KeyBank is a duly organized and validly existing national banking association under the laws of the United States and continues to hold a valid certificate to do business as such; each of the Company and KeyBank has full corporate power and authority to conduct its business as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus and is duly qualified to do business in each jurisdiction in which it owns or leases real property, except where the failure to be so qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company and its subsidiaries taken as a whole; and all of the outstanding shares of capital stock of KeyBank have been duly authorized and validly issued, are fully paid and non-assessable (exceptions to be specified) and (except as otherwise stated in the Registration Statement) are owned beneficially by the Company subject to no security interest, other encumbrance or adverse claim.
(ii) This Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Company.
(iii) The Notes conform in all material respects to the description thereof contained or incorporated by reference in the General Disclosure Package (if applicable), the Prospectus and the applicable prospectus supplement and such description conforms in all material respects to the rights set forth in the instruments defining the same.
(iv) The Notes have been duly and validly authorized by the Company and, when executed, authenticated and delivered in accordance with the terms of the applicable Indenture and issued to and paid for by any purchaser of the Notes sold through an Agent as agent or any Agent as principal pursuant to any Terms Agreement or other agreement, will be entitled to the benefits of such applicable Indenture and will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms subject (A) to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the proposed assignmentrequirements that a claim with respect to any Notes denominated other than U.S. dollars (or a foreign currency, lease currency unit or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (E) to any applicable foreign governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency.
(v) Each of the Senior Indenture and the Subordinated Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (E) to any applicable foreign governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Indentures have been duly qualified under the Trust Indenture Act.
(vi) The issue and sale of the Notes and the execution and delivery by the Company of the Notes, the Indentures, this Agreement and any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Notes as principal (provided such Terms Agreement or other agreement has been executed and delivered in accordance with this Agreement and the Indentures) and the consummation of the transactions herein and therein contemplated will not impair the validity under the Act conflict with or result in a breach or violation of any of the Bonds terms and will not adversely affect provisions of, or constitute a default under, any statute, rule or regulation, any agreement or instrument known to such counsel to which the exclusion of interest on the Bonds from gross income for federal tax purposes. After Company or any lease, sale, transfer or other disposition of any element or unit subsidiary of the FacilitiesCompany is a party or by which it or any of them are bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, the Company’s Second Amended and Restated Articles of Incorporation, as amended or Second Amended and Restated Regulations, or any interest order known to such counsel of any court or governmental agency or body having jurisdiction over the Company.
(vii) No consent, approval, authorization, license or order of, registration of, or qualification, filing or registration with, any court or governmental agency or body is required for the issue and sale of the Notes or the consummation of the other transactions contemplated by this Agreement, any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Notes as principal (provided such Terms Agreement or other agreement has been executed and delivered in accordance with this Agreement and the applicable Indenture) or the Indentures, except such as have been obtained under the Securities Act and the Trust Indenture Act or such as may be required under state securities or Blue Sky laws in connection with offers and sales of the Notes from the Company and with purchases of Notes.
(viii) The Registration Statement is effective under the Securities Act; any required amendment or supplement to each prospectus relating to the offered Notes (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of any Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission.
(ix) Such counsel is of the opinion that the statements set forth in the Prospectus under the caption “Material United States Tax Considerations,” insofar as they purport to constitute a summary of matters of U.S. federal tax law and regulations or legal conclusions with respect thereto, constitute an accurate summary of the matters set forth therein in all material respects.
(x) Such counsel is of the opinion that at the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date such opinion is delivered, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to therein or in any document incorporated by reference therein or any exhibits thereto, and the Statements of Eligibility of the Trustee on Form T-1 filed as an exhibit thereto, as to which we express no opinion), complied as to form in all material respects with the requirements of the Securities Act, the Exchange Act, the Trust Indenture Act and the respective rules thereunder; provided that in the case of an opinion delivered on the Commencement Date (other than in connection with a Terms Agreement), the opinion and beliefs set forth above shall be deemed not to cover information concerning an offering of particular Notes to the extent such information will be set forth in a supplement to the Basic Prospectus.
(xi) Such counsel has no reason to believe that (A) (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to therein or in any document incorporated by reference therein or any exhibits thereto, and the Statements of Eligibility of the Trustee on Form T-1 filed as an exhibit thereto, as to which we express no opinion) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, and if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, at the time of the most recent such filing, and as of the date such opinion is delivered, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to therein or in any document incorporated by reference therein or any exhibits thereto, and the Statements of Eligibility of the Trustee on Form T-1 filed as an exhibit thereto, as to which we express no opinion) the Prospectus, as amended or supplemented, as of its date, at the Commencement Date and the Time of Delivery, contained or contains any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part light of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unitcircumstances under which they were made, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:not
Appears in 1 contract
Conditions. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Prospectus, as amended or supplemented, in relation to the Shares, shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period described for such filing by the rules and regulations under the Securities Act, and as of the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall be in effect or shall be pending or, to the knowledge of the Company's interest , threatened by the Commission; and no notice objecting to its use pursuant to Rule 401(g)(2) shall have been issued and no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Section 3(a)(62) under the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. Any officer signing and delivering such certificate may be assigned rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion, including an opinion with regard to the Company’s qualification and taxation as a whole or in partREIT, and its interest a negative assurance letter of Cravath, Swaine & ▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in form and substance reasonably acceptable to the Facilities may be leasedUnderwriters.
(d) The Underwriters shall have received on the Closing Date an opinion of Skadden, soldArps, transferred or otherwise disposed of by Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, tax counsel for the Company Company, with regard to the Company’s qualification and taxation as a whole REIT, dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(e) The Underwriters shall have received on the Closing Date an opinion of the General Counsel or Associate General Counsel to the Company, dated the Closing Date, in part form and substance reasonably acceptable to the Underwriters.
(whether f) The Underwriters shall have received on the Closing Date an interest opinion and a negative assurance letter of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably acceptable to the Underwriters.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve letter dated the Company from its primary liability for its obligations under Section 5.01 date hereof or (b) shall be made unless the assignee, lessee, purchaser or other transfereeClosing Date, as the case may be, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to or simultaneously with such assignmentthe Closing Date.
(h) The Shares shall have been approved for listing on the New York Stock Exchange (“NYSE”), lease, sale, transfer or other disposition, assumes, by delivery subject only to official notice of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if issuance.
(i) the Company's interest in this Agreement shall be assigned as a whole On or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, prior to the extent of such assignment, lease, sale, transfer or other dispositionClosing Date, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority Underwriters such further certificates and documents as the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act Underwriters may reasonably request.
(i) The representations and warranties of the Bonds Company contained herein shall be true and will not adversely affect the exclusion of interest correct on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit and as of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Closing Date.
Appears in 1 contract
Sources: Underwriting Agreement (Crown Castle International Corp)
Conditions. The several obligations of the Sellers to sell the Shares, and the obligations of the Selling Stockholder to cause each other Seller to sell the Shares, to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the conditions that the Registration Statement shall have become effective prior to the date hereof. The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date (i) a certificate, dated the Closing Date and signed by an executive officer of the Company's interest , to the effect set forth in Section 6(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (ii) one or more certificates, dated the Closing Date and signed by an executive officer of each Seller, to the effect that the representations and warranties of each Seller contained in this Agreement are true and correct as of the Closing Date and that each Seller has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. Each officer signing and delivering each such certificate may be assigned rely upon the best of his or her knowledge as a whole or to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company, each dated the Closing Date, in partform and substance reasonably satisfactory to the Representative.
(d) The Underwriters shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Legal Officer of the Company, dated the Closing Date, in form and its interest substance reasonably satisfactory to the Representative.
(e) The Underwriters shall have received on the Closing Date an opinion of Shearman & Sterling LLP, counsel for the Sellers, dated the Closing Date, in form and substance reasonably satisfactory to the Representative.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, each dated the Closing Date, in form and substance reasonably satisfactory to the Representative. With respect to the negative assurance letter referenced in Section 6(c) above, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may state that their opinions and beliefs in such letter are based upon their participation in the Facilities preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(e) above, Shearman & Sterling LLP may rely upon an opinion or opinions of counsel for the Sellers and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of the Sellers contained herein and in other documents and instruments; provided that (A) each such counsel for the Sellers is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of any such other documents and instruments shall be leaseddelivered to you and shall be in form and substance satisfactory to your counsel and (D) Shearman & Sterling LLP shall state in their opinion that they are justified in relying on each such other opinion. The opinions and negative assurance letters, soldas applicable, transferred or otherwise disposed of by ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Shearman & Sterling LLP described in Sections 6(c) and 6(e) above (and any opinions of counsel for the Company as a whole or Sellers referred to in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (bimmediately preceding paragraph) shall be made unless rendered to the assignee, lessee, purchaser Underwriters at the request of the Company or other transfereethe Sellers, as the case may be, prior to and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, from KPMG LLP and KPMG S.p.A., independent registered public accountants for the Company, one or simultaneously with such assignmentmore letters dated the date hereof or the Closing Date, leaseas the case may be, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form and substance satisfactory to the Trustee Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the audited and unaudited financial statements and certain financial information of the Company contained or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the AuthorityProspectus; provided that each such letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The “lock-up” agreements, all each substantially in the form previously agreed, between you and certain stockholders, officers and directors of the Company, including the Selling Stockholder, relating to sales and certain other dispositions of shares of Common Stock and/or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(i) The Underwriters shall have received such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Firm Shares and other matters related to the issuance of such Firm Shares.
(j) The several obligations of the Company Underwriters to purchase Additional Shares hereunder are subject to the extent delivery to you on the applicable Option Closing Date of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following:
(i) (A) a certificate, dated the Option Closing Date and signed by an executive officer of the Company's interest in this Agreement shall be assigned , confirming that the certificate delivered on the Closing Date pursuant to clause 6(b)(i) above remains true and correct as of such Option Closing Date and (B) a whole or in undivided partcertificate, dated the Option Closing Date and signed by an executive officer of each Seller, confirming that the certificate delivered on the Closing Date pursuant to clause 6(b)(ii) above remains true and correct as of such Option Closing Date;
(ii) (A) an opinion and negative assurance letter of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the Company's interest , each dated the Option Closing Date, in connection with the Facilities shall Additional Shares to be leased purchased on such Option Closing Date and otherwise to the same effect as a whole or in undivided part the opinion required by Section 6(c) above and the term (B) an opinion of such leasehold or the term of any extension or extensions thereof at the option ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Legal Officer of the Company shall extend beyond Company, dated the maturity date of Option Closing Date, in connection with the Bonds or Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(d) above;
(iii) an opinion of Shearman & Sterling LLP, outside counsel for the Sellers, dated the Option Closing Date, in connection with the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(e) hereof;
(iv) an opinion and negative assurance letter of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Underwriters, each dated the Option Closing Date, in connection with the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(f) hereof;
(v) one or more letters dated the Option Closing Date, in form and substance satisfactory to the Representative, from KPMG LLP and KPMG S.p.A., independent registered public accountants for the Company's interest , substantially in the Facilities shall be sold, transferred or otherwise disposed of same form and substance as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, letter furnished to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company Underwriters pursuant to clause 6(g) hereof; provided that each such letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(bvi) shall be conditioned upon the delivery by the Company such other documents as you may reasonably request with respect to the Authority good standing of the Company, the due authorization and issuance of the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all Additional Shares to be sold on such Option Closing Date and other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company matters related to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion issuance of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Additional Shares.
Appears in 1 contract
Conditions. 5.01 Conditions for the Benefit of the Purchaser (1) The Companysale by the Vendor and the purchase by the Purchaser of the Purchased Assets is subject to the following conditions, which are for the exclusive benefit of the Purchaser and which are to be performed or complied with at or prior to the Time of Closing:
(a) the representations and warranties of the Vendor set forth in Section 3.01 will be true and correct at the Time of Closing with the same force and effect as if made at and as of such time;
(b) the Vendor will have performed or complied with all of the terms, covenants and conditions of this Agreement to be performed or complied with by the Vendor at or prior to the Time of Closing;
(c) the Purchaser will be furnished with such certificates or other instruments (including instruments of conveyance with respect to the Purchased Assets) of the Vendor or of officers of the Vendor as the Purchaser or the Purchaser's interest counsel may reasonably think necessary in order to establish that the terms, covenants and conditions contained in this Agreement may to have been performed or complied with by the Vendor at or prior to the Time of Closing have been performed or complied with and that the representations and warranties of the Vendor herein given are true and correct at the Time of Closing;
(d) the transactions contemplated by this Agreement shall have been approved by the shareholders of the Vendor by special resolution and no shareholder of the Vendor shall have exercised a right of dissent pursuant to Section 185 of the Business Corporations Act (Ontario) in respect thereto;
(e) no action or proceeding in Canada will be assigned as a whole pending or threatened by any person, government, governmental authority, regulatory body or agency to enjoin, restrict or prohibit the sale and purchase of the Purchased Assets contemplated hereby;
(f) no material damage by fire or other hazard to the Purchased Assets will have occurred from the date hereof to the Time of Closing;
(g) the Purchaser will have been furnished with evidence satisfactory to it that the sale and purchase of the Purchased Assets is in part, compliance with the provisions of the Bulk Sales Act (Ontario);
(h) all necessary steps and its interest proceedings will have been taken to permit the Purchased Assets to be duly and regularly transferred to and registered in the Facilities may name of the Purchaser;
(i) there will be leaseda non-competition agreement entered into between the Vendor and the Purchaser substantially in the form attached hereto as Schedule 5.01(1)(i);
(j) there will be a non-competition agreement entered into between each of ▇▇▇▇▇ ▇▇, sold▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ Mudarth (collectively, transferred or otherwise disposed "the Developers") and the Purchaser substantially in the form attached hereto as Schedule 5.01(1)(j)
(k) the Vendor will have delivered to the Purchaser a favourable opinion of the Vendor's counsel substantially in the form attached hereto as Schedule 5.01(1)(k);
(l) the Vendor will have delivered to the Purchaser a certificate issued by the Company as a whole Ministry of Finance of Ontario pursuant to section 6 of the Retail Sales Tax Act (Ontario) which indicates that the Vendor has paid all taxes collectable or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve payable under the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form said Act up to the Trustee Closing Date or has entered into an arrangement satisfactory to the said Minister for the payment of such taxes;
(m) the Developers shall have waived all rights and interests, moral, proprietary or otherwise, if any, in and to the Authority, all other obligations Software;
(n) the Purchaser shall have had an opportunity to inspect and test compilable source code versions of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed ofSoftware, and the Company results of such inspection and testing shall be released of and discharged from such obligations acceptable to the extent so assumed. Notwithstanding the foregoingPurchaser in its sole discretion, acting reasonably; and
(a) if (io) the Company's interest in this Agreement Purchaser shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part satisfied that Goods and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, Services Tax and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability Retail Sales Tax is not exigible in respect of such obligations the sale of the Purchased Assets by the Vendor to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Magnitude Information Systems Inc)
Conditions. 5.1 Conditions to Each Party’s Obligation to Effect the Transactions. The Company's interest in this Agreement may be assigned as a whole obligations of the Purchaser and the Seller to consummate the Transactions are subject to the satisfaction (or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of waiver by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest)Purchaser and the Seller, to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition if permissible under applicable Law) of the following conditions:
(a) the Stockholder Approval shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or have been obtained;
(b) no Governmental Authority having jurisdiction over the Seller, the Unwired Planet Companies or the Purchaser shall be made unless have issued an Order or taken any other Legal Action enjoining or otherwise prohibiting consummation of the assignee, lessee, purchaser Transactions substantially on the terms contemplated by this Agreement;
(c) the Noteholder Consent shall remain in full force and effect and no Legal Action with respect thereto shall have been commenced; and
(d) no stop Order suspending the use of the Proxy Statement shall have been issued by the SEC and no proceedings for that purpose shall have been initiated or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument threatened in writing satisfactory in form by the SEC that have not been withdrawn.
5.2 Conditions to the Trustee and Obligations of the Authority, all other Purchaser. The obligations of the Company hereunder Purchaser to consummate the Transactions are subject to the extent satisfaction (or waiver by the Purchaser) of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, following further conditions:
(a) if (i) each of the Company's interest representations and warranties of the Seller (other than in Section 3.1, Section 3.2, Section 3.5(a)(ii), Section 3.5(g)(ii), Section 3.8 and Section 3.9) in Article 3 and Section 4.10(c) of this Agreement shall be assigned true and correct in all respects as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a whole particular date or with respect to a specific period in which event such representation or warranty shall be so true and correct in all respects only as of such particular date or with respect to such specific period), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to have, individually or in undivided partthe aggregate, a Material Adverse Effect and (ii) each of the Company's interest representations and warranties of the Seller contained in the Facilities Section 3.1, Section 3.2, Section 3.5(a)(ii), Section 3.5(g)(ii), Section 3.8 and Section 3.9 shall be leased true and correct in all respects as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a whole particular date or with respect to a specific period in undivided part which event such representation or warranty shall be so true and the term correct in all respects only as of such leasehold particular date or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and with respect to such specific period);
(b) the Seller shall have performed in all material respects all obligations, and complied in all material respects with the event that agreements and covenants, required to be performed by or complied with by it hereunder at or prior to the assigneeClosing;
(c) all Consents, lessee, purchaser approvals or other transferee shall assume the obligations clearances listed in Section 3.3 of the Company Seller Disclosure Letter shall have been obtained;
(d) all officers, directors, and managers of each of the Unwired Planet Companies set forth on Section 4.7 of the Seller Disclosure Letter shall have resigned effective as of the Closing;
(e) all of the assets listed in Section 1.1(c) of the Seller Disclosure Letter shall continue to be owned by UPLLC and the Seller shall have all rights and obligations under the Contracts listed in Section 5.01 hereof for 1.1(d) of the remaining term of this Agreement, to Seller Disclosure Letter;
(f) all intercompany Contracts between the extent of such assignment, lease, sale, transfer or other disposition, the Seller and any Unwired Planet Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge have been terminated as of the Company pursuant to clause Closing Date;
(bg) the Purchaser shall be conditioned upon the delivery by the Company to the Authority and the Trustee of have received a certificate of signed by an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 authorized officer of the sum of Seller (x) the aggregate principal amount on behalf of the Bonds then Outstanding Seller and (y) the outstanding principal amount of all other obligations not in an individual capacity), dated as of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; providedClosing Date, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair conditions in Section 5.2(a) and Section 5.2(b) have been satisfied;
(h) the validity under the Act Seller shall have made each of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit deliveries listed in Section 5.2(h) of the FacilitiesSeller Disclosure Letter; and
(i) Since the date of this Agreement, there shall not have been any Material Adverse Effect or any interest thereinevent, change or effect that would, individually or in the Company mayaggregate, at reasonably be expected to have a Material Adverse Effect.
5.3 Conditions to the Obligations of the Seller. The obligations of the Seller to consummate the Transactions are subject to the satisfaction (or waiver by the Seller) of the following further conditions:
(a) each of the representations and warranties of the Purchaser set forth in Article 2 and Section 4.10(d) shall be true and correct in all material respects as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a particular date or with respect to a specific period in which event such representation or warranty shall be so true and correct only as of such particular date or with respect to such specific period);
(b) the Purchaser shall have performed in all material respects all of its option, cause such element or unit, or interest therein, to no longer be deemed obligations hereunder required to be part of performed by the Facilities for the purposes of this Agreement by delivering Purchaser at or prior to the Authority and Closing;
(c) the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument Seller shall have received a certificate signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part authorized officer of the Facilities for Purchaser (on behalf of the purposes Purchaser and not in an individual capacity), dated as of this Agreement. For purposes the Closing Date, to the effect that, to the knowledge of this such officer, the conditions in Section 7.01:5.3(a) and Section 5.3(b) have been satisfied;
(d) the Purchaser shall have made each of the deliveries listed in Section 5.3(d) of the Seller Disclosure Letter; and
(e) the Ericsson Consent shall be in full force and effect and no Legal Action with respect thereto shall have been commenced.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Conditions. (a) The Company's interest obligations of the Investment Entity to cancel the Valero Obligations in this Agreement may exchange for the Shares at the First Exchange Closing and any Optional Closing shall be assigned as a whole subject to the satisfaction (or in partwaiver) of the following conditions:
(i) Valero shall have furnished to the Investment Entity an opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., and its interest special counsel to Valero, dated the applicable Closing Date in the Facilities may be leasedform of Exhibit B hereto and of ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, soldGeneral Counsel of Valero, transferred or otherwise disposed dated the applicable Closing Date in the form of by Exhibit C hereto;
(ii) the Company private letter ruling (as a described in the Registration Statement) shall remain in full force and effect and shall not have been revoked in whole or in part as of the applicable Closing Date;
(whether an interest in a specific element iii) no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer permanent injunction or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof order enacted, entered, promulgated, enforced or (b) issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall be made unless in effect preventing the assignee, lessee, purchaser transactions contemplated to occur at the First Exchange Closing or other transfereethe Optional Exchange Closing, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, applicable;
(aiv) if (iA) the Company's interest representations and warranties of Valero in this Agreement shall be assigned true and correct in all respects on and as of the applicable Closing Date, with the same effect as if made on the applicable Closing Date, (B) Valero shall have complied with all the covenants and satisfied all the conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the applicable Closing Date and (C) Valero shall have furnished to the Investment Entity a whole certificate of Valero in a form reasonably satisfactory to the Investment Entity, signed by an authorized officer of Valero, in his or her capacity as an officer of Valero and not in undivided parthis or her individual capacity, and dated the applicable Closing Date, to the effect set forth in clauses (A) and (B) above;
(A) the representations and warranties of CST Brands in this Agreement shall be true and correct in all respects on and as of the applicable Closing Date, with the same effect as if made on the applicable Closing Date, (B) CST Brands shall have complied with all the covenants and satisfied all the conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the applicable Closing Date and (C) CST Brands shall have furnished to the Investment Entity a certificate of CST Brands in a form reasonably satisfactory to the Investment Entity, signed by the chief executive officer and chief financial officer of CST Brands, dated the applicable Closing Date, to the effect set forth in clause (A) and (B) above;
(vi) the Underwriting Agreement has been duly executed and delivered and shall remain in full force and effect and the conditions to the obligations of the Underwriters to purchase and pay for the applicable Shares as set forth in the first paragraph of Section 6 (with respect to Valero and CST Brands only) and Section 6(a), (b), (e), (g), (j), (k) (with respect to Valero and CST Brands only), (m) and (o) of the Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the applicable closing pursuant to the Underwriting Agreement); and
(vii) Valero shall have furnished to the Investment Entity a properly completed and executed (i) United States Treasury Department Form W-9 (or other applicable form or statement specified by the Treasury Department regulations in lieu thereof) and (ii) the Company's interest certification of non-foreign status substantially in the Facilities form set forth in Treasury Regulations Section 1.1445-2(b)(2)(iv). In the event that any of the conditions set forth in this clause (a) shall not have been fulfilled (or waived by the Investment Entity) on the First Exchange Closing Date, this Agreement may be terminated by the Investment Entity by delivering a written notice of termination to Valero and CST Brands. The parties acknowledge and agree that any of their respective rights and/or obligations under the Underwriting Agreement shall not be affected by any such termination of this Agreement.
(b) The obligations of Valero to exchange Shares for cancellation of the Valero Obligations at the First Exchange Closing and any Optional Closing shall be leased as a whole subject to the satisfaction (or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option waiver) of the Company following conditions:
(i) The Investment Entity shall extend beyond have furnished to Valero an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the maturity date Investment Entity, dated the applicable Closing Date in the form of Exhibit D hereto;
(ii) (A) the representations and warranties of the Bonds Investment Entity in this Agreement shall be true and correct in all respects on and as of the applicable Closing Date, with the same effect as if made on the applicable Closing Date, (B) the Investment Entity shall have complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the applicable Closing Date and (C) the Investment Entity shall have furnished to Valero a certificate of the Investment Entity in a form reasonably satisfactory to Valero, signed by an authorized officer and dated the applicable Closing Date, to the effect set forth in clauses (A) and (B) above;
(iii) the Company's interest private letter ruling (as described in the Facilities Registration Statement) shall be sold, transferred or otherwise disposed of as a remain in full force and effect and shall not have been revoked in whole or in undivided partpart as of the applicable Closing Date;
(iv) no statute, and (b) in the event that the assigneerule, lesseeregulation, purchaser executive order, decree, temporary restraining order, preliminary or permanent injunction or other transferee order enacted, entered, promulgated, enforced or issued by any federal, state, local or foreign government or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or other legal restraint or prohibition shall assume be in effect preventing the transactions contemplated to occur at the First Exchange Closing or the Optional Exchange Closing, as applicable;
(v) the Investment Entity shall have delivered to Valero IRS Form W-9 (or other applicable form or statement specified by the Treasury Department regulation in lieu thereof; and
(vi) the Underwriting Agreement shall have been duly executed and delivered and shall remain in full force and effect and the conditions to the obligations of the Company under Section 5.01 hereof Underwriters to purchase and pay for the remaining term applicable Shares as set forth in the first paragraph of this Agreement, Section 6 (with respect to the extent of such assignmentInvestment Entity only) and Section 6(c)(d), lease(f), sale(i), transfer or other disposition, the Company shall be released from and discharged of all liability in (k) (with respect of such obligations to the extent so assumed Investment Entity only) and (but only to such extent); provided, however, that the release and discharge l)-(n) of the Company Underwriting Agreement shall have been satisfied or waived (other than those conditions that by their nature cannot be satisfied prior to the applicable closing pursuant to the Underwriting Agreement). In the event that any of the conditions set forth in this clause (b) shall not have been fulfilled (or waived by Valero) on the First Exchange Closing Date, this Agreement may be conditioned upon terminated by Valero by delivering a written notice of termination to the delivery Investment Entity and CST Brands. No representation, warranty or covenant made by the Company Investment Entity in this Agreement shall give rise to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability claim in respect of such obligationstax liabilities. Anything herein to The parties acknowledge and agree that any of their respective rights and/or obligations under the contrary notwithstanding, the Company Underwriting Agreement shall not make be affected by any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes termination of this Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Conditions. The Company's interest Notwithstanding anything in this Agreement may be assigned as a whole or in part, and its interest in Commitment Letter (including each of the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interestexhibits attached hereto), to the Fee Letters, the Facility Documentation or any Person; provided, however, that no such assignment, lease, sale, transfer other agreement or other disposition (a) shall relieve undertaking concerning the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless financing of the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form Transactions to the Trustee and contrary, the Authority, all other obligations obligation of the Company Commitment Party hereunder to fund the extent of Term Facility on the interest assigned, leased, sold, transferred or otherwise disposed ofClosing Date, and the Company shall be released agreements of and discharged from such obligations the Arranger to perform the services described herein, are subject solely to the extent so assumedconditions specified in Exhibit C hereto, and there are no conditions (expressed, implied or otherwise) to such funding or performance, including compliance with the terms of this Commitment Letter, the Fee Letters or the Facility Documentation, other than those expressly set forth in Exhibit C hereto (such conditions, collectively, the “Limited Conditionality Provisions”), and, upon satisfaction (or waiver by the Commitment Party) of such conditions, the initial funding of the Term Facility shall occur. Notwithstanding anything in this Commitment Letter (including each of the foregoingexhibits attached hereto), (a) if the Fee Letters, the Facility Documentation or any other agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the Company's interest in this Agreement only representations and warranties, the accuracy of which will be a condition to the availability of the Term Facility on the Closing Date shall be assigned (A) such of the representations and warranties in the Acquisition Agreement made by the Company, the Seller and their respective subsidiaries as are material to the interests of the Lenders, but only to the extent that you have (and/or your applicable affiliate has) the right to terminate your (and/or its) obligations under the Acquisition Agreement or the right not to consummate the Acquisition pursuant to the terms of the Acquisition Agreement as a whole or result of a breach of such representations and warranties in undivided partthe Acquisition Agreement (to such extent, the “Specified Acquisition Agreement Representations”) and (B) the Specified Representations (as defined below) and (ii) the Company's interest in terms of the Facilities Facility Documentation shall be leased consistent with the Documentation Principles (as defined in Exhibit B) and shall be in a whole or in undivided part and form such that they do not impair the term of such leasehold or the term of any extension or extensions thereof at the option availability of the Company shall extend beyond Term Facility on the maturity date of Closing Date if the Bonds Limited Conditionality Provisions are satisfied (or waived by the Commitment Party) (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreementit being understood that, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability that any security interest in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert any Collateral (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person defined in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value Existing Credit Agreement (as hereinafter defineddefined in Exhibit B)) of such rights, interests, assets and/or properties to the Person acquiring the same is not less or cannot be provided and/or perfected (if applicable) on the Closing Date (other than an amount equal to 10/7 of the sum of (i) any security interest in any Collateral which may be perfected (if applicable) by (x) the aggregate principal amount filing of a financing statement under the Bonds then Outstanding and Uniform Commercial Code (the “UCC”) or (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, delivery to the extent Administrative Agent (or its designee) of any such assumption by the Company certificated equity interests with respect to certificated securities (but only to such extent), the aforesaid assignee, lessee, purchaser and related stock powers or other transferee shall be released from and discharged similar transfer instruments) of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:the
Appears in 1 contract
Conditions. The Company's interest obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the performance by each of the Company and the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Subsidiaries contained in this Agreement may and in each of the Documents shall be assigned true and correct in all material respects as a whole of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in partthe aggregate, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as have a whole or in part (whether an interest in a specific element or unit or an undivided interestMaterial Adverse Effect), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or .
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, after reasonable inquiry, be pending as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be made unless the assigneepending or, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations knowledge of the Company hereunder after reasonable inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the extent respective dates as of which data and information is given in the interest assignedFinal Offering Circular, leasedthere shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, sold, transferred Inc. relating to trading in The PORTAL Market.
(f) On or otherwise disposed of, after the date hereof and the Company shall be released of and discharged from such obligations on or prior to the extent so assumed. Notwithstanding the foregoingClosing Date, (a) if (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the Company's interest in this Agreement shall be assigned direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as a whole or in undivided partsuch term is defined for purposes of Rule 436(g)(2) under the Act, (ii) the Company's interest there shall not have occurred any negative change, nor shall any notice have been given of any potential or intended negative change, in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of outlook for any extension or extensions thereof at the option rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall extend beyond have given notice that it has assigned (or is considering assigning) a lower rating to the maturity Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof and in each of the Documents are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied in all material respects with all agreements and satisfied in all material respects all conditions in all material respects on its part to be performed or satisfied by the Company at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the Bonds or (iii) the Company's interest most recent financial statements in the Facilities shall be soldFinal Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), transferred to the knowledge of such officers, no event or otherwise disposed events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Final Offering Circular or contemplated hereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Subsidiaries, taken as a whole whole, or entered into any transactions not in undivided partthe ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Subsidiaries, taken as a whole, and (be) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations sale of the Company under Section 5.01 hereof for Notes has not been enjoined (temporarily or permanently);
(ii) certificate dated the remaining term of this AgreementClosing Date, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge signed by an Executive Officer of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assignedCompany, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 on behalf of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; providedCompany, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignmentcombined pro forma Adjusted EBITDA of the Business for the most recent twelve-month period (as set forth in the footnotes to the “Summary Historical and Pro Forma Combined Financial Data” section of the Offering Circular) (a) was not less than $27.5 million, lease (b) presents fairly the financial position, results of operations and cash flows of the Company and its consolidated Subsidiaries after giving pro forma effect to the Acquisition and Related Transactions, and (c) has been prepared in accordance with the requirements of Rule 11-02 of Regulation S-X and give effect to assumptions used in the preparation therof on a reasonable basis and in good faith;
(iii) a certificate, dated the Closing Date, executed by the Secretary of the Company and each Guarantor, certifying such matters as the Initial Purchaser may reasonably request;
(iv) a certificate of solvency, dated the Closing Date, executed by the principal financial or sale will not impair accounting officer of the validity Company substantially in the form previously approved by the Initial Purchaser or its counsel;
(v) the opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, in the form of Exhibit A attached hereto; and
(vi) an opinion, dated the Closing Date, of Proskauer Rose LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(h) The Initial Purchaser shall have received from Ernst & Young LLP, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, with respect to the financial statements and certain financial information contained in the Final Offering Circular (other than all ▇▇▇▇▇▇ Financial Statements and information), and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, to the effect that Ernst & Young LLP reaffirms the statements made in its letter furnished pursuant to clause (A).
(i) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(j) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(k) The terms of each Document shall conform in all material respects to the description thereof in the Final Offering Circular.
(l) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed Uniform Commercial Code financing statements naming the Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the Act UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Bonds Collateral Agent and will not adversely affect its counsel, desirable to perfect the exclusion security interests of interest the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Final Offering Circular; and (ii) no Lien exists on any of the Bonds from gross income collateral described above other than the Lien created in favor of the Collateral Agent, for federal tax purposes. After any leasethe benefit of the Secured Parties, salepursuant to a Collateral Agreement, transfer in each case subject to the Permitted Liens.
(m) Provision shall have been made for the filing of all Uniform Commercial Code financing statements or other disposition of any element or unit similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (l)(i) and (ii) above (collectively, the “Filing Statements”) reasonably acceptable to the Collateral Agent (the “Filing Agent”).
(n) The Initial Purchaser shall have received substantially contemporaneously with the Closing a copy of the Facilities, receipt of a payoff letter or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part other evidence of repayment from each of the Facilities for institutions listed on Schedule II attached hereto.
(o) The Initial Purchaser shall have received evidence that the purposes Equity Contribution and Other Investments to Parent in the amount of $49,100,000 shall have been consummated as described under the section entitled “The Acquisition and Related Transaction” of the Offering Circular.
(p) The Acquisition shall have occurred or shall occur substantially simultaneously with the Closing of the Offering.
(q) Each of the Subsidiaries shall have executed counterparts of this Agreement by delivering in the form attached as Exhibit B hereto and delivered copies of such executed counterparts to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Initial Purchaser.
Appears in 1 contract
Sources: Purchase Agreement (Boston Gear LLC)
Conditions. The Company's interest obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the satisfaction (or waiver by the Initial Purchaser) of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement may and in each of the Documents shall be true and correct as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, have or result in a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have or result in a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Circular and the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in PORTAL.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 3 hereof and in each of the Documents and the information in the Perfection Certificate are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), to the knowledge of such officers, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have or result in a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Final Offering Circular or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser.
(iv) the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date, in the form of Exhibit A attached hereto.
(v) an opinion, dated the Closing Date, of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(h) The Initial Purchaser shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ & Company LLC, independent public accountants under the standards established by the American Institute of Certified Public Accountants, with respect to the Company, (A) a customary comfort letter, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to certain financial statements and certain financial information contained in the Time of Sale Circular and the Final Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that ▇▇▇▇▇ ▇▇▇▇▇▇ & Company LLC reaffirms the statements made in its letter furnished pursuant to clause (A).
(i) The Initial Purchaser shall have received from Deloitte & Touche LLP, independent public accountants under the standards established by the American Institute of Certified Public Accountants, with respect to the Company, (A) a customary comfort letter, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to certain financial statements and certain financial information contained in the Time of Sale Circular and the Final Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that Deloitte & Touche LLP reaffirms the statements made in its letter furnished pursuant to clause (A).
(j) Each of this Agreement, the Indenture, the Collateral Agreements, the Intercreditor Agreement, and the Notes shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each of the Documents.
(k) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in partconnection with the Offering or any transaction contemplated in the Documents.
(l) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Circular.
(m) The Credit Agreement Amendment shall have been executed and delivered by all parties thereto, and its interest the Initial Purchaser shall have received a fully executed original of such document which shall be in form and substance reasonably satisfactory to the Facilities may be leasedInitial Purchaser.
(n) On the Closing Date, soldthe Company shall have paid or caused to have been paid in cash the reasonable fees and expenses of Mayer, transferred or otherwise disposed Brown, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser.
(o) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed copies of by Uniform Commercial Code financing statements naming the Company as a whole debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in part the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(whether an interest ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in a specific element any collateral described in any security agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or unit or an undivided interestCopies (Form UCC-11), or a similar search report certified by a party acceptable to any Person; providedthe Collateral Agent, howeverdated a date reasonably near to the Closing Date, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve listing all effective financing statements which name the Company from (under its primary liability for present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its obligations under Section 5.01 hereof or (b) counsel shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if satisfied that (i) the Company's interest Lien granted to the Collateral Agent, for the benefit of the Secured Parties in this Agreement the collateral is a valid and enforceable Lien; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, or Permitted Liens.
(p) All Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (m)(ii) and (iii) above (collectively, the “Filing Statements”) shall be assigned as have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent (the “Filing Agent”). The Filing Agent shall have acknowledged in a whole or in undivided partwriting reasonably satisfactory to the Collateral Agent and its counsel (i) the Filing Agent’s receipt of all Filing Statements, (ii) that the Company's interest Filing Statements have either been submitted for filing in the Facilities shall appropriate filing offices or will be leased as a whole or submitted for filing in undivided part the appropriate offices within ten days following the Closing Date and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) that the Filing Agent will notify the Collateral Agent and its counsel of the results of such submissions within 30 days following the Closing Date.
(q) The Company's interest , CitiSteel and CitiSteel PA, Inc. shall have entered into a Tax Sharing Agreement, and CitiSteel shall have obtained a favorable opinion as to the fairness of the financial terms of the Tax Sharing Agreement from Innovation Capital, LLC in satisfaction of the Facilities requirements of Section 4.14(a) of the indenture governing CitiSteel’s senior secured floating rate notes due 2010, which opinion shall be sold, transferred or otherwise disposed of as a whole or in undivided part, form and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, substance reasonably satisfactory to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Initial Purchaser.
Appears in 1 contract
Conditions. The Company's interest in If with respect to the Borrowed Securities, (i) the Company has not performed all of the obligations required to be performed by it under this Agreement may be assigned as a whole on or in part, and its interest in prior to the Facilities may be leased, sold, transferred Closing Time or otherwise disposed any Date of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transfereeDelivery, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond conditions set forth in Section 5 hereof have not been satisfied on or prior to the maturity date Closing Time or any Date of Delivery, as the Bonds case may be, or (iii) any of the Company's interest conditions set forth in the Facilities applicable Forward Sale Agreement shall be soldnot have been satisfied on or prior to the Closing Time or any Date of Delivery, transferred or as the case may be, (clauses (i) through (iii), together, the “Conditions”), then the Forward Seller, in its sole discretion, may elect not to borrow and deliver for sale to the Underwriters the Borrowed Securities otherwise disposed of as a whole or in undivided partdeliverable on such date. In addition, and (b) in the event the Forward Seller determines that the assigneein connection with establishing its commercially reasonable hedge position, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other dispositionin its sole judgment, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed Forward Seller (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (bor its affiliate) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) is unable, after using commercially reasonable efforts, to borrow and deliver for sale the aggregate principal amount full number of Borrowed Securities to be borrowed and sold pursuant to this Agreement at the Bonds then Outstanding and Closing Time or on such Date of Delivery or (y) would incur a stock loan cost of more than a rate equal to 200 basis points per annum to do so with respect to all or any portion of such full number of Borrowed Securities, then, in each case and upon notice delivered no later than 9:00 A.M., (Eastern time), at the outstanding principal amount Closing Time or Date of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; providedDelivery, further, that after any such assumption, release and discharge as aforesaidapplicable, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time Forward Seller shall only be required to time, and, deliver for sale to the extent Underwriters on the Closing Time or such Date of any such assumption by Delivery, as the Company (but only to such extent)case may be, the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged aggregate number of all liability in respect shares of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect Common Stock that the proposed assignment, lease Forward Seller or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer its affiliate is able to borrow in connection with establishing its hedge position at or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause below such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:cost.
Appears in 1 contract
Conditions. The Company's interest obligation of the parties to consummate the transaction provided for herein is subject to the satisfaction or waiver of the following conditions, with the conditions set forth in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition clauses (a) shall relieve through (d) being deemed to be the Company from its primary liability for its obligations under Section 5.01 hereof "Initial Conditions" and the conditions set forth in clauses (e) though (h) being deemed to be the "Additional Conditions" and with the Initial Conditions and the Additional Conditions being collectively referred to as the "Conditions:"
(a) The issuance to Assignee of a license to operate the Facility as of the Transfer Date or the receipt by Licensee of such assurances as may be reasonably acceptable to it that within a reasonable period of time after the Transfer Date it will be licensed to operate the Facility effective as of the Transfer Date.
(b) shall be made unless The receipt of the assignee, lessee, purchaser or other transferee, as Landlord Consent duly executed by Landlord and the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery satisfaction of an instrument in writing satisfactory in form any conditions to the Trustee effectiveness thereof, which Landlord Consent shall provide, at a minimum, for the elimination of the termination rights granted to the Landlord under the Fifth Amendment thereto and the Authority, all other obligations amendment of the Company hereunder Lease, if and to the extent necessary to ensure that it is treated for accounting purposes as an operating, rather than a capital lease, and that Assignee and the Facility are in compliance with any financial covenants contained therein.
(c) The satisfaction by Assignee with the results of its due diligence investigation with respect to the Facility, including, but not limited to, its review and approval of the interest assigned, leased, sold, transferred or otherwise disposed structural and environmental condition of, and the Company shall be released of operating systems, including electrical, plumbing and discharged from such obligations HVAC systems, within, the Facility, the title to the extent so assumedFacility, the zoning of the Facility, an ALTA survey of the Facility and the real property on which it is located, a pest inspection report with respect to the Facility.
(d) The receipt of Assignee of the approval of its Board of Directors. Notwithstanding On or before September 13, 2002 (or earlier if possible) Assignee shall advise Tenant in writing as to which, if any, of the foregoing, conditions has not been satisfied and setting forth in reasonable detail the reasons therefor (athe "Assignee Objection Notice"). Tenant shall have a period of five (5) days after receipt of the Assignee Objection Notice in which to respond and advise Assignee in writing whether or not it will correct the items to which Assignee has objected in the Objection Notice or, if applicable, give Assignee additional time to resolve the matters to which Assignee has objected in the Assignee Objection Notice (the "Tenant Response Notice"). Assignee shall have five (5) days after receipt of the Tenant Response Notice to advise Tenant in writing whether or not it is prepared to proceed with the transaction or to terminate the transaction (the "Assignee Response Notice"). If Assignee elects to terminate the transaction, then Assignee shall be entitled to the immediate return of the $100,000 ▇▇▇▇▇▇▇ Money deposit previously paid by Assignee to Tenant under the terms of that Letter of Intent dated July 25, 2002 between Assignee and Tenant (the "LOI"). If Assignee elects to proceed with the transaction, then the assignment and assumption provided for herein shall occur five (5) business days after the delivery of the Assignee's Response Notice, subject to the satisfaction of the following Additional Conditions:
(e) It shall be a condition to the obligation of each of Tenant and Assignee to consummate the transaction provided for herein that, on the Transfer Date, the representations and warranties of Tenant and Assignee set forth in Section 13 hereof shall be true and correct in all material respects.
(f) It shall be a condition to the obligation of Tenant to consummate the transaction provided for herein that, on the Transfer Date, Assignee shall deliver to Landlord its letter of credit or other security in form and substance acceptable to Landlord in the amount of $741,751.65 (the "LC Amount") and Landlord shall return to Tenant Tenant's cash deposit in the LC Amount.
(g) It shall be a condition to the obligation of Tenant to consummate the transaction provided for herein that, on the Transfer Date, Assignee shall pay to Tenant the sum of Three Hundred Eight Thousand and no/100 Dollars ($308,000) as consideration for the assignment of the Lease to Assignee and the transfer to Assignee of the other assets described herein (the "Transfer Consideration").
(h) The execution and delivery of a letter duly executed by Tenant and Assignee confirming (i) that, as of the Company's interest in this Transfer Date, the Facility shall cease to be subject to the terms of the Management Agreement shall be assigned dated as a whole or in undivided partof December 31, 2001 between Tenant and Assignee and (ii) the Company's interest in the Facilities shall waiver by Assignee of any termination fees which would otherwise be leased due thereunder as a whole or in undivided part and the term result of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:termination.
Appears in 1 contract
Sources: Lease Assignment and Operations Transfer Agreement (Emeritus Corp\wa\)
Conditions. The Company's interest obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) All the representations and warranties of the Company and its Subsidiaries contained in this Agreement may and in each of the Documents shall be assigned true and correct as a whole of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in partthe aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and its interest (B) would not, individually or in the Facilities may be leasedaggregate, soldhave a Material Adverse Effect, transferred or otherwise disposed except as disclosed in the Final Offering Circular.
(d) Subsequent to the respective dates as of which data and information is given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a whole lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or in part (whether an interest in a specific element or unit or an undivided interest)accounting officer of the Company, on behalf of the Company, to any Person; provided, however, the effect that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under representations and warranties set forth in Section 5.01 4 hereof or and in each of the Documents, are true and correct in all respects, as of the date hereof and at the Closing Date, (b) shall be made unless the assignee, lessee, purchaser or Company and each other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form party to the Trustee Documents (other than the Initial Purchaser) have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the AuthorityDocuments (other than conditions to be satisfied by such other parties, all which failure to satisfy would not, individually or in the aggregate, have a Material Adverse Effect), (c) at the Closing Date or since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other obligations than as disclosed in the Final Offering Circular or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby, neither the Company nor any Subsidiary of the Company hereunder has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the extent Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the interest assignedCompany and its Subsidiaries, leasedtaken as a whole, soldand there has not been any change in the Capital Stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the business, transferred condition (financial or otherwise disposed ofotherwise) or results of operations or prospects of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company and the Guarantors, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in a form satisfactory to the Initial Purchaser.
(iv) the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Company, and local counsel for the Company and the Guarantors, dated the Closing Date, in form reasonably satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(v) an opinion, dated the Closing Date, of Mayer, Brown, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(h) The Initial Purchaser shall have received (I) from E&Y, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (B) a customary "bring down" comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that E&Y reaffirms the statements made in its letter furnished pursuant to clause (I)(A) above and (II) from KPMG LLP, independent auditors, with respect to Target, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circular relating to Target, and (B) a customary "bring down" comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that E&Y reaffirms the statements made in its letter furnished pursuant to clause (II)(A) above.
(i) Each of the Documents shall have been executed and delivered by all parties thereto, and the Company Initial Purchaser shall have received a fully executed original of each Document.
(j) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(k) The Initial Purchaser shall have received the Final Offering Circular, and the terms of each Document shall conform in all material respects to the description thereof in the Final Offering Circular.
(l) None of the parties to any of the Documents are in breach or default in any material respect under their respective obligations thereunder.
(m) The Collateral Agent and its counsel shall be released satisfied that, concurrent with the purchase of and discharged from such obligations to the extent so assumed. Notwithstanding Notes hereunder by the foregoingInitial Purchaser, (a) if (i) the Company's interest Lien granted to the Collateral Agent, for the benefit of the Secured Parties in this Agreement shall be assigned as a whole or the collateral is of the priority described in undivided part, the Final Offering Circular; and (ii) no Lien exists on any of the Company's interest collateral other than the Lien created in favor of the Facilities shall be leased as Collateral Agent, for the benefit of the Secured Parties, pursuant to a whole or Collateral Agreement, in undivided part and each case subject to the term of such leasehold or the term of any extension or extensions thereof at the option Permitted Liens.
(n) All information certified to by an officer of the Company shall extend beyond in the maturity date Perfection Certificate, to be dated as of the Bonds or (iii) the Company's interest in the Facilities Closing shall be sold, transferred or otherwise disposed of true and correct as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Closing Date.
(o) The Company shall be released from and discharged of have deposited all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon gross proceeds received from the delivery by Offering into the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed ofEscrow Account, together with all other rightssufficient cash to yield the Escrow Redemption Price, interestsplus accrued but unpaid interest to, assets and/or properties assignedbut excluding, leased, sold, transferred or otherwise disposed of by the Company to the same Person Escrow Redemption Date (both as defined in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities Offering Circular and for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:7(o), assuming an Escrow Redemption Date of January 31, 2005) for all of the Notes and shall have provided to the Initial Purchaser evidence thereof reasonably satisfactory to the Initial Purchaser. (p) The Company shall have paid all fees payable to the Initial Purchaser under Section 3 hereof.
Appears in 1 contract
Sources: Purchase Agreement (Eschelon Telecom of California, Inc.)
Conditions. The Company's interest obligation of the Initial Purchaser to purchase the Notes or the Offered Shares, under this Agreement is subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) All the representations and warranties contained in this Agreement may and in each of the Documents shall be assigned true and correct as a whole of the date hereof and at the First Closing Date as though then made and, with respect to the Optional Additional Shares, as of each Option Closing date as though then made. On or prior to the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied in all material respects with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in partthe aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes or the Offered Shares, in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after due inquiry, be pending or contemplated as of the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, prevent the consummation of the Offerings or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes or the Offered Shares, and its interest (B) would not, individually or in the Facilities may be leasedaggregate, soldhave a Material Adverse Effect, transferred or otherwise disposed except as disclosed in the Final Offering Circulars.
(d) Subsequent to the respective dates as of which data and information is given in the Time of Sale Circulars and the Final Offering Circulars, there shall not have been any Material Adverse Change.
(e) The Notes and the Offered Shares shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the Company as a whole or National Association of Securities Dealers, Inc. relating to trading in part the PORTAL market.
(whether an interest in a specific element or unit or an undivided interest)f) The Underlying Securities shall have been approved for listing on the American Stock Exchange, to the extent required by such exchange, subject only to notice of issuance.
(g) On or after the date hereof, (i) there shall not have occurred any Person; provideddowngrading, howeversuspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or the Goldking Entities or any securities of the Company or the Goldking Entities (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or the Goldking Entities or any securities of the Company or the Goldking Entities by any such rating organization and (iii) no such assignmentrating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes or the Offered Shares than that on which the Notes or Offered Shares were marketed.
(h) The Initial Purchaser shall have received on the applicable Closing Date:
(i) certificates dated the First Closing Date and, leasewith respect to the Optional Additional Shares, saleeach Option Closing Date, transfer signed by (1) the Chief Executive Officer and (2) the principal financial or other disposition accounting officer of the Company, on behalf of the Company, to the effect that (a) shall relieve the Company from its primary liability for its obligations under representations and warranties set forth in Section 5.01 5 hereof or and in each of the Documents, are true and correct in all respects, as of the date hereof and at the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, (b) the Company and each other party to the Documents (other than the Initial Purchaser) have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which failure to satisfy would not, individually or in the aggregate, have a Material Adverse Effect), (c) at First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date or since the date of the most recent financial statements in the Final Offering Circulars (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circulars or contemplated hereby, no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circulars (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circulars or contemplated hereby, neither the Company, the Goldking Entities nor the Guarantors have incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Guarantors, taken as a whole, or the Goldking Entities or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations of the Company and the Guarantors, taken as a whole, or the Goldking Entities and there has not been any change in the Capital Stock or long-term indebtedness of the Company or the Guarantors of the Company or the Goldking Entities that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company and the Guarantors, taken as a whole, or the Goldking Entities and (e) the sale of the Notes or the Offered Shares has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, executed by the Secretary of the Company and the Guarantors, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, executed by the principal financial or accounting officer of the Company substantially in a form reasonably satisfactory to the Initial Purchaser.
(iv) the opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of Eaton & Van Winkle LLP, counsel to the Company and the Guaranto▇▇ ▇▇bst▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ form attached hereto as Exhibit D.
(v) the opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of Jackson Walker L.L.P., counsel to the Company and the Guarantor▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ the form attached hereto as Exhibit E.
(vi) the opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of Thompson & Knight LLP, counsel to the Initial Purchaser, in for▇ ▇▇▇▇▇▇actory to the Initial Purchaser.
(vii) the opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of Louisiana counsel to the Company and the Guarantors, substantially in the form attached hereto as Exhibit F.
(viii) an opinion, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, of White & Case LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(ix) The "lock-up" agreements, each substantially in the form of Exhibit G-1 hereto, from the persons identified on Exhibit G-2 relating to sales and certain other dispositions of shares of Common Stock or certain other securities shall be made unless in full force and effect on the assigneeFirst Closing Date and, lesseewith respect to the Optional Additional Shares, purchaser each Option Closing Date.
(i) The Initial Purchaser shall have received from each Malone & Bailey P.C. and Hein and Associates LLP, independent public ▇▇▇▇▇▇tan▇▇ ▇▇▇er the sta▇▇▇▇ds established by the American Institute of Certified Public Accountants, with respect to the Company and the Goldking entities, respectively, (A) customary comfort letters, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Preliminary Offering Circulars, (B) customary comfort letters, dated the date of this Agreement, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circulars and (C) customary "bring down" comfort letters, dated the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that each of Malone & Bailey P.C. and Hein and Associates LLP reaffirms the statem▇▇▇▇ ▇ade ▇▇ ▇▇s respecti▇▇ ▇etters furnished pursuant to clause (A) and (B).
(j) On the date hereof and also at the Closing Date, the Initial Purchaser shall have received from the principal financial or accounting officer of the Company a certificate in form and substance reasonably satisfactory to the Initial Purchaser as to the accuracy of certain numbers contained or incorporated by reference in the Time of Sale Circulars and the Offering Circulars, which numbers shall be set forth in a schedule attached to such certificate.
(k) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(l) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents.
(m) The Initial Purchaser shall have received the Final Offering Circulars, and the terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Circulars.
(n) Prior to the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, each of DeGloyer and MacNaughton, the Company's independent petroleum engineer and Cawley, ▇▇▇▇▇▇▇▇▇ & Associates, Goldking's independent petroleum engi▇▇▇▇, sh▇▇▇ ▇▇▇▇ furnished to the Initial Purchaser a letter or letters, dated the respective date of delivery thereof, in form and substance satisfactory to the Initial Purchaser.
(o) None of the parties to any of the Documents are in breach or default in any material respect under their respective obligations thereunder.
(p) The Collateral Agent shall have received on the applicable Closing Date:
(i) appropriately completed copies of Uniform Commercial Code UCC-1 financing statements naming each of the Company and the Guarantors as the debtor and the Collateral Agent as the secured party, or other transfereesimilar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the Lien of the Collateral Agent pursuant to the Security Agreement;
(ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the First Closing Date and, with respect to the Optional Additional Shares, each Option Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) fully executed counterparts of a Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (the "Deed of Trust"), in form and substance reasonably satisfactory to Collateral Agent, which Deed of Trust shall cover the real and personal property relating to the Obligors' facilities in the locations to be listed on Schedule I to the Indenture; and
(v) such other approvals or documents as the Collateral Agent or the Initial Purchaser may reasonably request in form and substance reasonably satisfactory to the Collateral Agent or Initial Purchaser, as the case may be.
(q) The Collateral Agent and its counsel shall be satisfied that, prior to concurrent with the purchase of the Notes or simultaneously with such assignmentthe Offered Shares hereunder by the Initial Purchaser, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form (A) the Lien granted to the Trustee Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Final Offering Circulars; and (B) no Lien exists on any of the Authoritycollateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens.
(r) All steps, other than the payment of consideration, shall have been completed in connection with the Acquisition. In the case of the Preferred Stock, all steps, other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that than the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) funds by the aggregate principal amount of the Bonds then Outstanding Initial Purchaser and (y) shares of Preferred Stock to the outstanding principal amount of all other obligations Initial Purchaser shall have been consummated in connection with the sale and purchase of the Company representing indebtedness for borrowed money or for Preferred Stock. In the deferred purchase price case of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaidthe Notes, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent offering of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it Preferred Stock shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:been consummated.
Appears in 1 contract
Sources: Purchase Agreement (Dune Energy Inc)
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligations of Sellers and Purchaser to consummate the transactions contemplated by this Agreement shall relieve be subject to the Company from satisfaction or waiver, on or before the Closing Date, of the following conditions:
(i) All waiting periods (and any extension thereof) under laws applicable to the transactions contemplated by this Agreement shall have expired or been earlier terminated.
(ii) There shall be no injunction, restraining order or decree of any nature of any court or governmental authority that is in effect that restrains or prohibits the consummation of the transactions contemplated by this Agreement or imposes conditions on such consummation not otherwise provided for herein.
(iii) Neither Purchaser nor any Seller shall have been advised by any United States federal government agency (which advisory has not been officially withdrawn on or prior to the Closing Date) that such government agency is investigating the transactions contemplated by this Agreement to determine whether to file or commence any litigation that seeks or would seek to enjoin, restrain or prohibit the consummation of the transactions contemplated by this Agreement. In the event any of the above conditions is not satisfied on or before the Closing, either Forestar Petroleum, Forestar (USA) or Purchaser will have the right, exercisable at its primary liability for its sole election, to terminate this Agreement by delivering written notice to the other Parties before the Closing, whereupon Escrow Agent will return the ▇▇▇▇▇▇▇ Money to Purchaser, and the Parties will have no further rights or obligations under Section 5.01 hereof or hereunder (except as otherwise expressly provided herein).
(b) shall be Unless waived by Purchaser, the obligations of Purchaser under this Agreement are expressly made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form subject to the Trustee and the Authority, fulfillment in all other obligations respects of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if following conditions precedent:
(i) the Company's interest truth and accuracy as of the Closing Date, in this Agreement shall be assigned as a whole or in undivided partall material respects, of each and every warranty and representation herein made by any Seller; and
(ii) the Company's interest Each Seller’s timely performance of and compliance with, in the Facilities shall all material respects, each and every term, condition, agreement, restriction and obligation to be leased as a whole or in undivided part performed and the term of complied with by such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or Seller under this Agreement; and
(iii) Title Company delivering to Purchaser at Closing its Marked Commitment to issue an Owner’s Policy to Purchaser insuring Purchaser’s marketable, fee simple title to the Company's interest Real Property. In the event any of the above conditions is not satisfied on or before the Closing, Purchaser will have the right, exercisable at Purchaser’s sole election, to exercise the remedies described in Section 15(b). Notwithstanding the Facilities shall be soldforegoing sentence, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that of either Seller’s failure to fulfill any condition precedent set forth in Section 14(b)(ii), Purchaser shall provide written notice to such Seller and such Seller shall have seven (7) days from receipt of such notice to fulfill the assigneecondition precedent before Purchaser may exercise any remedies described in Section 15(b).
(c) Unless waived by a Seller, lessee, purchaser or other transferee shall assume the obligations of such Seller under this Agreement are expressly made subject to the Company fulfillment in all respects of the following conditions precedent:
(i) the truth and accuracy as of the Closing Date, in all material respects, of each and every warranty and representation herein made by Purchaser; and
(ii) Purchaser’s timely performance of and compliance with, in all material respects, each and every term, condition, agreement, restriction and obligation to be performed and complied with by Purchaser under Section 5.01 hereof for the remaining term of this Agreement.
(iii) The aggregate acreage of all Title Objection Property shall not exceed ten percent (10%) of the acreage of the Timberlands In the event any of the above conditions is not satisfied on or before the Closing, either Seller will have the right, exercisable at such Party’s sole election, to exercise the extent of remedies described in Section 15(a), provided that if either Seller elects to exercise such assignment, lease, sale, transfer or other dispositionremedy, the Company other Seller shall be released from and discharged of all liability in respect of such obligations deemed to have made an identical election. Notwithstanding the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating thatforegoing sentence, in the opinion event of Purchaser’s failure to fulfill any condition precedent set forth in Section 14(c)(ii), Sellers shall provide written notice to Purchaser and Purchaser shall have seven (7) days from receipt of such Independent Expert, notice to fulfill the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after condition precedent before Seller may exercise any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under remedies described in Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent15(a), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Conditions. The obligation of any Agent, as agent of the Company's interest in this Agreement may be assigned as a whole or in part, at any time ("Solicitation Time") to solicit offers to purchase the Notes, the obligation of any Purchaser to purchase Notes pursuant to any Terms Agreement, and its interest the obligation of any other purchaser to purchase Notes shall in each case be subject (1) to the condition that all representations and warranties of the Company herein and all statements of officers of the Company made in any certificate furnished pursuant to the provisions hereof are true and correct (i) in the Facilities may be leasedcase of an Agent's obligation to solicit offers to purchase Notes, soldat and as of such Solicitation Time and (ii) in the case of any Purchaser's or any other purchaser's obligation to purchase Notes, transferred or otherwise disposed at and as of by the time the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), accepts the offer to any Person; provided, however, that no purchase such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transfereeNotes and, as the case may be, at and as of the related Time of Delivery or time of purchase; (2) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or simultaneously time of purchase, as the case may be, the Company shall have complied with all its agreements and all conditions on its part to be performed or satisfied hereunder; and (3) to the following additional conditions when and as specified (it being understood that under no circumstance shall any Agent have any duty or obligation to exercise discretionary judgment on behalf of the Company or any purchaser in respect of the fulfillment of any such assignmentcondition):
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented (including, if applicable, the Pricing Supplement) with respect to such Notes shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been commenced or shall be pending before or contemplated by the Commission;
(ii) there shall not have been any downgrading, nor shall any notice have been given of any intended or potential downgrading or any review or possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act subsequent to the date hereof;
(iii) there shall not have been any change, or any development involving a prospective adverse change, in the capital stock or in the long-term debt of the Company or any of its Subsidiaries from that set forth or incorporated by reference in the Registration Statement and Prospectus which would, in the opinion of the Agents, materially impair the investment quality of the Notes;
(iv) the Company and its Subsidiaries shall have no liability or obligation, direct or contingent, which is material to the Company and its Subsidiaries, taken as a whole, other than those reflected or incorporated by reference in the Registration Statement and the Prospectus;
(v) there shall not have been any adverse change or development involving a prospective adverse change, in the condition, financial or otherwise, of the Company or any of its Subsidiaries or the earnings, affairs, or business prospects of the Company or any of its Subsidiaries, whether or not arising in the ordinary course of business, which would, in the opinion of the Agents, materially impair the investment quality of the Notes; and
(vi) there shall not have been any (A) outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic conditions or in the financial markets of the United States or elsewhere that, in the judgment of the applicable Agent, is material and adverse and would, in the judgment of the applicable Agent, make it impracticable to market the Notes on the terms and in the manner contemplated in the Prospectus, (B) suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the NASDAQ National Market System or limitation on prices for securities on any such exchange or National Market System, (C) enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the opinion of the Agents materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (D) declaration of a banking moratorium by either federal or New York State authorities or (E) taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the opinion of the Agents has a material adverse effect on the financial markets in the United States.
(b) On the Commencement Date, and in the case of a purchase of Notes by a Purchaser pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel of the Company, or such other counsel acceptable to the Agents, shall have furnished to the Agents or the Purchaser, as the case may be, his written opinion, dated the Commencement Date or Time of Delivery, as the case may be, in form and substance satisfactory to such Agents or such Purchaser, as the case may be, to the effect that:
(i) the Company and each of the Subsidiaries has been duly incorporated, is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority required to carry on its business as described in the Prospectus and to own, lease and operate its properties;
(ii) each of the Company and the Subsidiaries is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the Company and its subsidiaries, taken as a whole;
(iii) all the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights;
(iv) all of the outstanding shares of capital stock of, or other ownership interests in, each of the Subsidiaries have been duly and validly authorized and issued, are fully paid and non-assessable and are owned by the Company, free and clear of any security interest, claim, lien, encumbrance or adverse interest of any nature;
(v) the statements (A) incorporated by reference in the Prospectus from Item 3 of the Company's Annual Report on Form 10-K for the year ended December 31, 1998 and (B) incorporated in the Prospectus from Item 1 of Part II of the Company's Quarterly Reports on Form 10-Q filed since such Annual Report, insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;
(vi) to the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is or could be a party or to which any of their respective property is or could be subject that are required to be described in the Registration Statement or the Prospectus and are not so described or incorporated by reference, or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or are required to be filed as an exhibit to the Registration Statement that are not so described or filed or incorporated by reference as required;
(vii) to the best of such counsel's knowledge, neither the Company nor any of the Subsidiaries is in violation of its respective certificate of incorporation or by-laws except for such violations that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, and, neither the Company nor any of its Subsidiaries is in default in the performance of any obligation, agreement, covenant or condition contained in any bond, debenture, indenture, loan agreement, mortgage, lease or any other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective property is bound;
(viii) neither the Company nor any of the Subsidiaries has violated any Environmental Law or any provisions of the Employee Retirement Income Security Act of 1974, as amended, or the rules and regulations promulgated thereunder, except for such violations which, singly or in the aggregate, would not have a material adverse effect on the business, prospects, financial condition or results of operation of the Company and its subsidiaries, taken as a whole;
(ix) each of the Company and the Subsidiaries has such Authorizations of, and has made all filings with and notices to, all governmental or regulatory authorities and self-regulatory organizations and all courts and other tribunals, including, without limitation, under any applicable Environmental Laws, as are necessary to own, lease, salelicense and operate its respective properties and to conduct its business, transfer except where the failure to have any such Authorization or other dispositionto make any such filing or notice would not, assumessingly or in the aggregate, by delivery have a material adverse effect on the business, prospects, financial condition or results of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations operations of the Company hereunder and its Subsidiaries, taken as a whole; each such Authorization is valid and in full force and effect and each of the Company and its Subsidiaries is in compliance with all the terms and conditions thereof and with the rules and regulations of the authorities and governing bodies having jurisdiction with respect thereto; and no event has occurred (including, without limitation, the receipt of any notice from any authority or governing body) which allows or, after notice or lapse of time or both, would allow, revocation, suspension or termination of any such Authorization or results or, after notice or lapse of time or both, would result in any other impairment of the rights of the holder of any such Authorization; and such Authorizations contain no restrictions that are materially burdensome to the extent Company and its subsidiaries, taken as a whole; except where such failure to be valid and in full force and effect or to be in compliance, the occurrence of any such event or the presence of any such restriction would not, singly or in the aggregate, have a material adverse effect on the business, prospects, financial condition or results of operations of the interest assignedCompany and its subsidiaries, leasedtaken as a whole;
(x) the execution, solddelivery and performance by the Company of this Agreement, transferred any applicable Terms Agreement, the Indenture and the Notes and compliance by the Company with all the provisions hereof and thereof will not conflict with or otherwise disposed constitute a breach of any of the terms or provisions of, or a default under, the certificate of incorporation or by-laws of the Company or any of its Subsidiaries or any indenture, loan agreement, mortgage, lease or other agreement or instrument that is material to the Company and its subsidiaries, taken as a whole, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective property is bound, except for any such conflict, breach or default which would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or violate or conflict with any applicable law or any rule, regulation, judgment, order or decree of any court or any governmental body or agency having jurisdiction over the Company, any of its Subsidiaries or their respective property;
(xi) to the best of such counsel's knowledge, all leases to which the Company or any of its Subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder which might result in any material adverse change in the business, prospects, financial condition or results of operation of the Company and its subsidiaries, taken as a whole, and the Company shall and its Subsidiaries enjoy peaceful and undisturbed possession under all such leases to which any of them is a party as lessee with such exceptions as do not materially interfere with the use made by the Company or such Subsidiary;
(xii) each document incorporated by reference in the Registration Statement and the Prospectus (except for the financial statements included therein as to which no opinion need be released expressed) complied as to form when filed with the Commission in all material respects with the Securities Exchange Act of 1934, as amended.
(1) the Registration Statement and discharged from such obligations the Prospectus (except for the financial statements, including the notes thereto, and supporting schedules and other financial, statistical and accounting data contained or incorporated by reference therein and the statements of eligibility of the Trustees on Form T-1, as to which no opinion need be expressed) comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission
(2) nothing has come to the extent so assumed. Notwithstanding attention of such counsel that would lead such counsel to believe that (except for the foregoingfinancial statements, including the notes thereto, and supporting schedules and other financial, statistical and accounting data contained or incorporated by reference therein and the statements of eligibility of the Trustees on Form T-1 as to which no belief need be expressed) (ax) if any part of the Registration Statement when such part became effective or on the date of this Agreement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (iy) the Company's interest Prospectus on the date hereof contains any untrue statement of a material fact or omits to state a material fact necessary in this Agreement shall be assigned as a whole or in undivided partorder to make the statements therein, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option light of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be soldcircumstances under which they were made, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent)not misleading; provided, however, that the release opinion and discharge belief set forth in clauses (1) and (2) above shall be deemed not to cover information concerning an offering of particular Notes to the extent such information will be set forth in a supplement to the Prospectus. The opinion described in Section 6 (b) above shall be rendered to you at the request of the Company and shall so state therein.
(c) On the Commencement Date, and in the case of a purchase of Notes by a Purchaser pursuant to clause (b) shall be conditioned upon the delivery a Terms Agreement or otherwise, if called for by the Company applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assignedAgents, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and Agents or such Purchaser, as the Trustee an opinion case may be, their opinion, dated the Commencement Date or Time of Bond Counsel Delivery, as the case may be, to the effect that that:
(i) the proposed assignment, lease or sale will not impair the validity under the Act forms of the Bonds Notes have been duly authorized and, when the terms of a particular Note and will not adversely affect its issuance and sale have been duly established in conformity with the exclusion of interest on Indenture, and when such Note has been duly executed and authenticated in accordance with the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit provisions of the Facilities, or any interest therein, Indenture and delivered to and paid for by the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of purchasers thereof in accordance with the Facilities for the purposes terms of this Agreement by delivering and any applicable Terms Agreement, such Note will be entitled to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part benefits of the Facilities for Indenture and will be a valid and binding obligation of the purposes Company, enforceable against the Company in accordance with its terms except (a) as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and (b) as such enforcement may be limited by general principles of this Agreement. For purposes equity, regardless of this Section 7.01:whether enforcement i
Appears in 1 contract
Sources: Distribution Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Conditions. The Company's interest obligation of each of the Initial Purchasers to purchase the Notes under this Agreement are subject to the performance by each of the Issuers and the Guarantors of its respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the Subsidiaries contained in this Agreement may and in each of the Documents shall be assigned true and correct in all material respects as a whole or in partof the date hereof and at the Closing Date, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignmentrepresentations and warranties that are already qualified by either materiality or Material Adverse Effect shall be true and correct in all respects. On or prior to the Closing Date, leasethe Issuers, sale, transfer or the Guarantors and each other disposition party to the Documents (aother than the Initial Purchasers) shall relieve have performed or complied with all of the Company from its primary liability for its obligations under Section 5.01 hereof agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Transactions; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced, pending or, to the knowledge of the Issuers or the Guarantors after due inquiry, threatened or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Transactions. No Proceeding shall be made unless pending or, to the assigneeknowledge of the Issuers or the Guarantors after due inquiry, lesseethreatened other than Proceedings that (A) if adversely determined would, purchaser individually or other transfereein the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the case may beTime of Sale Document (exclusive of any amendment or supplement thereto) there shall not have been any Material Adverse Change which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offer, prior to sale or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument the Notes on the terms and in writing satisfactory in form to the Trustee manner contemplated by this Agreement, the Time of Sale Document and the AuthorityFinal Offering Memorandum.
(e) On or after the date hereof, all other obligations there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of any of the Company, the Subsidiaries or any securities or indebtedness of any of the Company hereunder or the Subsidiaries (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act and (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of any of the Company, the Subsidiaries or Parent or any securities or indebtedness of any of the Company, the Subsidiaries or Parent by any such rating organization.
(f) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (A) the chief executive officer of the Company and (B) the principal financial or accounting officer of each of the Issuers and the Guarantors, on behalf of the Issuers and the Guarantors, to the extent effect that (1) the representations and warranties set forth in Section 4, in each of the interest assignedDocuments and the Perfection Certificate are true and correct with the same force and effect as though expressly made at and as of the Closing Date, leased(2) the Issuers and the Guarantors have performed and complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, sold(3) at the Closing Date, transferred since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or otherwise disposed ofsupplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (4) since the date of the most recent financial statements in the Time of Sale Document and the Final Offering Memorandum (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Time of Sale Document and the Final Offering Memorandum or contemplated hereby, none of the Company or the Subsidiaries has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and the Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of any of the Company or the Subsidiaries that is material to the business, condition (financial or otherwise) or results of operations of the Company and the Subsidiaries, taken as a whole, and (5) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the chief financial officer of the Company, in the form of Exhibit A hereto;
(iii) a certificate, dated the Closing Date, executed by the secretary of each of the Issuers and the Guarantors, certifying such matters as the Initial Purchasers may reasonably request.
(iv) the Perfection Certificate, dated the Closing Date, executed by an officer of each of the Issuers and the Guarantors substantially in the form previously provided to counsel for the Issuers.
(v) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the each of the Issuers and the Guarantors, substantially in the form previously approved by the Initial Purchasers or their counsel.
(vi) the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Issuers, dated the Closing Date and addressed to the Initial Purchasers, in substantially the form of Exhibit B hereto.
(vii) the opinion of each of the counsel to the Issuers listed on Schedule IV hereto, dated the Closing Date and addressed to the Initial Purchasers, substantially in the form of Exhibit C hereto.
(viii) the opinion of Proskauer Rose LLP, counsel to the Initial Purchasers, dated the Closing Date and addressed to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(g) The Initial Purchasers shall have received from Ernst & Young LLP, independent auditors, with respect to the Company (i) a customary comfort letter, dated the date hereof, in the form of Exhibit D hereto, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, to the effect that ▇▇▇▇▇ & Young LLP reaffirms the statements made in its letter furnished pursuant to clause (i) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum.
(h) The Initial Purchasers shall have received from PricewaterhouseCoopers LLP, independent auditors, with respect to the Company (i) a customary comfort letter, dated the date hereof, in the form of Exhibit E hereto and substance reasonably satisfactory to the Initial Purchasers and their counsel, with respect to the financial statements and certain financial information contained in the Time of Sale Document, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers and their counsel, to the effect that Pricewaterhouse Coopers LLP reaffirms the statements made in its letter furnished pursuant to clause (i) with respect to the financial statements and certain financial information contained in the Time of Sale Document and the Final Offering Memorandum.
(i) Each of the Documents shall have been executed and delivered by all parties thereto.
(j) The Initial Purchasers shall have received copies of all opinions, certificates, letters and other documents delivered under the Documents or in connection with the Transactions.
(k) The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Document and the Final Offering Memorandum.
(l) The Collateral Agent shall have received (with copies for the Initial Purchasers) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code (“UCC”) financing statements naming the Issuers and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Collateral Agreements;
(ii) appropriately completed copies of UCC Form UCC 3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Collateral Agreement previously granted by any Person; and
(iii) such other approvals, opinions, or documents as the Collateral Agent or its counsel may reasonably request in form and substance reasonably satisfactory to the Collateral Agent.
(m) The Collateral Agent and its counsel shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if satisfied that (i) the Company's interest Lien granted to the Collateral Agent, for the benefit of the Secured Parties in this Agreement shall be assigned as a whole or the collateral described above is of the priority described in undivided part, the Time of Sale Document and the Final Offering Memorandum; and (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of no Lien exists on any extension or extensions thereof at the option of the Company shall extend beyond collateral described above other than the maturity date Lien created in favor of the Bonds or Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens;
(iiin) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser All UCC financing statements or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from similar financing statements and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents UCC Form UCC-3 termination statements required pursuant to Section 7.02 hereof together Sections 7(l)(i) and 7(l)(ii) (collectively, the “UCC Statements”) shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent.
(o) The Initial Purchasers shall have received substantially contemporaneously with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part the Closing a copy of the Facilities for receipt of a payoff letter from each of the purposes of this Agreement. For purposes of this Section 7.01:institutions listed on Schedule V hereto.
Appears in 1 contract
Conditions. The Company's interest in this Agreement may obligation of Lender to be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of bound by the Company as a whole provisions of this Amendment shall be subject to the fulfillment of the following conditions precedent on or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition before the date hereof:
(a) Lender shall relieve have received all of the Company from following, each in form and substance satisfactory to Lender, in its primary liability for its obligations under Section 5.01 hereof sole discretion, and each duly executed by each party thereto, other than Lender:
(i) This Amendment;
(ii) Sale and Participation Agreement, dated on or about the date hereof, executed by the CIT Group/Business Credit, Inc. ("CIT Group") (the "Participation Agreement"); and
(iii) All other documents Lender may request with respect to any matter relevant to this Amendment or the transactions contemplated hereby.
(b) Lender shall have received from CIT Group the payment required to be made by CIT Group to Lender pursuant to the provisions of the Participation Agreement in connection with the purchase by CIT Group of a participation in the Loans.
(c) No Event of Default shall have occurred and be continuing and no Default shall exist, unless such Event of Default or Default has been specifically waived in writing by Lender.
(d) Borrower shall have performed and complied with all agreements and conditions contained in the Agreement and the other Agreements which are required to be performed or complied with by Borrower before or on the date hereof.
(e) The representations and warranties contained in the Agreement, as amended hereby, and the other Agreements shall be true and correct in all material respects as of the date hereof, with the same force and effect as though made unless on and as of this date.
(f) No material adverse change shall have occurred in the assigneebusiness operations, lesseefinancial condition or prospects of Borrower, purchaser or other transfereeand no material adverse litigation shall be pending or, as to the case may beknowledge of Borrower, prior threatened, against Borrower.
(g) All corporate and legal proceedings and all documents required to or simultaneously be completed and executed by the provisions of, and all instruments to be executed in connection with such assignmentthe transactions contemplated by, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing this Amendment and any related agreements shall be satisfactory in form and substance to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Lender.
Appears in 1 contract
Sources: Loan and Security Agreement (Red Man Pipe & Supply Co)
Conditions. The Company's interest obligations of the Initial Purchaser to purchase the Units under this Agreement are several and subject to the satisfaction by the Company or waiver by the Initial Purchaser of each of the following conditions:
(a) All the representations and warranties of each of the Company and its Subsidiaries contained in this Agreement may and in each of the Documents to which the Company or any of its Subsidiaries is a party shall be assigned true and correct as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company, each of its Subsidiaries that is a whole party thereto and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with, in all material respects, all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied on or prior to the Closing Date pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in partthe aggregate, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as have a whole or in part (whether an interest in a specific element or unit or an undivided interestMaterial Adverse Effect), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or .
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall be made unless have been issued as of the assigneeClosing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Securities in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations knowledge of the Company hereunder after reasonable inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that, as of the Closing Date, prevents the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the extent knowledge of the interest assignedCompany after reasonable inquiry, leasedthreatened other than Proceedings that (A) if adversely determined would not, soldindividually or in the aggregate, transferred adversely affect the issuance or otherwise disposed ofmarketability of the Units, and (B) would not, individually or in the Company shall be released of and discharged from such obligations aggregate, have a Material Adverse Effect.
(d) Subsequent to the extent so assumed. Notwithstanding respective dates as of which data and information is given in the foregoingFinal Offering Circular, there shall not have been any Material Adverse Change.
(ae) if The Units, Notes and Warrants shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the Company's interest in this Agreement shall be assigned direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as a whole or in undivided partsuch term is defined for purposes of Rule 436(g)(2) under the Act, (ii) the Company's interest there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of outlook for any extension or extensions thereof at the option rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall extend beyond have given notice that it has assigned (or is considering assigning) a lower rating to the maturity Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof, in each of the Documents and the Perfection Certificate are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the Bonds most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known to the Company nor, except as disclosed in the Final Offering Circular, does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as disclosed in the Final Offering Circular or contemplated hereby and thereby, neither the Company nor any Subsidiary of the Company has incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company and its Subsidiaries, taken as a whole, or entered into any transactions not in the ordinary course of business that are material the properties, business, operations, earnings, assets, liabilities or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, and there has not been any change in the capital stock or long-term indebtedness of the Company or any Subsidiary of the Company that is material to the properties, business, operations, earnings, assets, liabilities or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, and (e) the sale of the Notes has not been enjoined (temporarily or permanently),
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request, including the approval by 80% of the authorized number of directors constituting the Board of Directors of the issuance of the Warrants and the Warrant Shares,
(iii) a certificate of solvency, dated the Company's interest in Closing Date, executed by the Facilities shall be sold, transferred principal financial or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations accounting officer of the Company under Section 5.01 hereof for substantially in the remaining term of this Agreement, form previously approved and provided to the extent Company by the Initial Purchaser or its counsel,
(iv) the opinion of such assignment▇▇▇▇▇▇ & Block LLP, lease, sale, transfer or other disposition, counsel to the Company shall be released from and discharged of all liability the Guarantors, dated the Closing Date, in respect of such obligations form and substance reasonably satisfactory to the extent so assumed Initial Purchaser,
(but only v) an opinion of each of the local counsel to such extent); provided, however, that the release and discharge any of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it listed on Schedule III hereto shall have furnished to the Authority Initial Purchaser, at the request of the Company or such Guarantor, its written opinion, dated the Closing Date and addressed to the Trustee Initial Purchaser, in form and substance reasonably satisfactory to the Initial Purchaser,
(vi) an opinion opinion, dated the Closing Date, of Bond Counsel ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP, special counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions, and
(vii) a representation and warranty certificate addressing collateral matters certified by an officer of the Company in form and substance reasonably satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, with respect to the Company, (i) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (ii) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser and its counsel, to the effect that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ reaffirms the proposed assignmentstatements made in its letter furnished pursuant to clause (i).
(i) Each of the Documents shall have been executed and delivered by all parties thereto, lease and the Initial Purchaser shall have received a fully executed original of each Document.
(j) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered or sale will required to be delivered under or in connection with the Offering, the Documents or any transaction contemplated in the Documents.
(k) The Initial Purchaser shall have received the Final Offering Circular, and the terms of each Document shall conform in all material respects to the description thereof in the Final Offering Circular.
(l) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) the Pledged Shares, together with stock powers or other powers of transfer related thereto and executed in blank;
(ii) fully executed Control Agreements (in form and substance reasonably satisfactory to the Initial Purchaser and its counsel) with respect to (A) each Securities Account (as defined in the Security Agreement) of each of the Company and the Guarantors that contains cash, cash equivalents and Investment Property (as defined in the Security Agreement) in an aggregate amount in excess of $250,000 as of the end of the most recently ended calendar month or at the Closing Date and (B) each Deposit Account (as defined in the Security Agreement) of each of the Company and the Guarantors that has a balance in excess of $250,000 as of the end of such month or at the Closing Date (other than ▇▇▇▇▇ cash, payroll and zero-balance accounts with respect to which the average aggregate amount on deposit in all such accounts at the close of business for the five business days immediately preceding the Closing Date did not impair exceed $1,000,000);
(iii) appropriately completed copies of Uniform Commercial Code financing statements naming the validity Company and each Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the Act UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Bonds Initial Purchaser and will not adversely affect its counsel, desirable to perfect the exclusion security interests of interest the Collateral Agent pursuant to the Security Agreement;
(iv) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any security agreement previously granted by any Person (including the Liens securing the 8% Notes);
(v) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Initial Purchaser and its counsel, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(vi) copies of the policies of insurance (or binders or insurance certificates in respect thereof), as are required by the terms of the Security Agreement; and
(vii) such other approvals, opinions, or documents as the Initial Purchaser or the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Initial Purchaser or the Collateral Agent, as case may be. The Initial Purchaser and its counsel shall be satisfied that (A) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the Collateral is perfected and of the priority described in the Final Offering Circular; and (B) no Lien exists on any of the Bonds from gross income Collateral other than the Lien created in favor of the Collateral Agent, for federal tax purposes. After any leasethe benefit of the Secured Parties, salepursuant to a Collateral Agreement, transfer in each case subject to the Permitted Liens.
(m) The Initial Purchaser and its counsel shall be satisfied that all arrangements necessary for the filing of all Uniform Commercial Code financing statements or other disposition of any element similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (l)(i) and (ii) above (collectively, the "Filing Statements") by CT Corporation System (or unit another similar filing service company acceptable to the Initial Purchaser or its counsel) in the appropriate filing offices within 10 days of the FacilitiesClosing Date have been made.
(n) The Company shall have delivered the following documents and instruments with regard to each of the Premises prior to or contemporaneously with the Closing:
(i) to the Collateral Agent, as mortgagee, fully executed counterparts of Mortgages, each dated as of the Closing Date, duly executed by the Company, together with evidence of the completion (or any interest thereinsatisfactory arrangements for the completion), of all recordings and filings of such Mortgage as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties to be covered thereby;
(ii) to the Collateral Agent, mortgagee's title insurance policies in favor of the Collateral Agent, as mortgagee for the ratable benefit of the Collateral Agent and the Secured Parties, in an amount equal to 100% of the Fair Market Value of the Premises purported to be covered by the related Mortgage, insuring that title to such property is marketable and that the interests created by the Mortgages constitute valid Liens thereon free and clear of all Liens, defects and encumbrances other than Permitted Liens, and such policies shall also include, to the extent available, a revolving credit endorsement and such other endorsements as the Collateral Agent shall reasonably request and shall have the standard exceptions thereto deleted (other than the survey exception to the extent required in Section 7(n)(iii) below) and shall be accompanied by evidence of the payment in full of all premiums thereon; and
(iii) to the Collateral Agent, with respect to each of the covered Premises, the most recent survey of such Premises and, solely to the extent that the title company insuring the Lien of the respective Mortgages shall deem such survey acceptable to remove the standard survey exception from the applicable title policy and/or to issue a survey endorsement with respect thereto, the Company may, at its option, cause shall have such element or unit, or interest therein, survey exception deleted and such survey endorsement delivered to no longer be deemed to be part the Collateral Agent.
(o) The Initial Purchaser shall have received substantially contemporaneously with the Closing a copy of the Facilities for receipt of a payoff letter or lien release letter from each of the purposes institutions listed on Schedule II attached hereto.
(p) The Initial Purchaser shall have received (i) evidence reasonably satisfactory to it that $55.7 million aggregate principal amount of this Agreement by delivering 8% Senior Notes will be paid contemporaneously with Closing to the Authority Redeemed 8% Senior Note Holders, and (ii) an executed copy of a supplemental indenture to the Trustee Indenture, dated as of April 8, 2003, between the agreements or other documents required pursuant Company and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as trustee, which supplemental indenture (including the amendments and lien release contained therein) shall be in full force and effect and in form and substance reasonably satisfactory to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Initial Purchaser and its counsel.
Appears in 1 contract
Conditions. 6.1 Conditions to the Obligation of Newco and the Funds to Effect the Transactions Described in Section 1.2 . The Company's interest in this Agreement may be assigned as a whole obligations of Newco and the Funds to consummate the Transactions are subject to the satisfaction (or in partwaiver by such party, and its interest in if permissible under applicable Law) of the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition following conditions:
(a) no Governmental Entity having jurisdiction over Newco or any of the Funds shall relieve have issued an order, decree or ruling or taken any other material action enjoining or otherwise prohibiting consummation of the Company from its primary liability for its obligations under Section 5.01 hereof or Transactions substantially on the terms contemplated by this Agreement;
(b) there shall be made unless the assigneeno order, lesseedecree, purchaser ruling or other transfereecircumstance taken, pending or threatened which could reasonably be expected to prevent consummation of the merger contemplated by Section 1.3 of the Merger Agreement (without waiver of any conditions thereto); and
(c) the Investment Manager shall be registered as an investment manager under the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form Advisers Act.
6.2 Conditions to the Trustee and Obligations of the Authority, all other Funds . The obligations of the Company hereunder Funds to consummate the transactions described in Section 1.2 are subject to the extent satisfaction (or waiver by a majority in interest of the interest assigned, leased, sold, transferred or otherwise disposed of, and Funds) of the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, following further conditions:
(a) if (i) each of the Company's interest in this Agreement representations and warranties of Newco shall be assigned true and correct in all material respects as of the Closing Date as if made on and as of the Closing Date (unless any such representation or warranty addresses matters only as of a whole particular date or with respect to a specific period in undivided part, (ii) the Company's interest in the Facilities which event such representation or warranty shall be leased so true and correct in all material respects only as a whole or in undivided part and the term of such leasehold particular date or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and with respect to such specific period);
(b) Newco shall have performed in all material respects its obligations hereunder required to be performed by it at or prior to the event that Closing;
(c) the assigneeFunds shall have received a certificate signed by an authorized representative of Newco, lessee, purchaser or other transferee shall assume the obligations dated as of the Company under Section 5.01 hereof for the remaining term of this AgreementClosing Date, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating effect that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent knowledge of any such assumption by the Company (but only to such extent)officer, the aforesaid assigneeconditions in Section 6.2(a) and Section 6.2(b) have been satisfied;
(d) all of the conditions in Article 5 of the Merger Agreement (other than conditions that, lesseeby their terms, purchaser or other transferee shall are to be released from and discharged of all liability in respect of such obligations. Anything herein to satisfied by performance at the contrary notwithstanding, the Company shall not make any assignment, lease or sale as Closing provided for in the immediately preceding paragraph unless it Merger Agreement) shall have furnished to the Authority been satisfied;
(e) Newco and the Trustee an opinion of Bond Counsel to Investment Manager shall have entered into the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this New Management Agreement by delivering to the Authority and the Trustee Administration Agreement;
(f) Newco shall have executed and delivered the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Registration Rights Agreement. For purposes of this Section 7.01:.
Appears in 1 contract
Sources: Subscription Agreement
Conditions. 6.1 Conditions to Each Party’s Obligation to Effect the Merger. The Company's interest respective obligations of each party to effect the Merger shall be subject to the fulfillment at or prior to the Closing Date of each of the following conditions (unless waived by each of the parties hereto in accordance with the provisions of Section 7.8 hereof):
(a) No preliminary or permanent injunction or other order, decree, statute, rule or regulation shall have been entered and remain in effect by any federal or s▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, local or other governmental entity which prevents the consummation of the Merger or materially changes the terms or conditions of this Agreement.
(b) All material consents, authorizations, orders and approvals of (or filings or registrations with) any governmental commission, board or other regulatory body required in connection with the execution, delivery and performance of this Agreement may shall have been obtained or made, except for the filing of the Articles of Merger and any documents required to be assigned as a whole filed after the Effective Time.
(c) The consummation of the Merger shall not violate applicable law.
6.2 Conditions to the Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be subject to the fulfillment at or in part, and its interest in prior to the Facilities may be leased, sold, transferred or otherwise disposed Closing Date of the following conditions (unless waived by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition accordance with the provisions of Section 7.8 hereof):
(a) This Agreement and the Merger shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or have been adopted and approved by Agreed Shareholder Approval.
(b) SG shall have performed, in all material respects, all of its respective obligations contained herein that are required to be made unless the assignee, lessee, purchaser performed by SG at or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed ofClosing Date, and the Company shall have received a certificate of an Executive Officer of SG, dated the Closing Date, certifying to such effect.
(c) The representations and warranties of SG contained in this Agreement and in any document delivered in connection herewith (disregarding any qualification contained therein with respect to materiality and material adverse effect) shall be released true and correct as of the Closing Date (except those representations and discharged warranties that address matters as of a particular date, which shall remain true and correct as of such date) with only such exceptions as would not in the aggregate have a material adverse effect on SG or its ability to perform its obligations hereunder. The Company shall have received a certificate of an Executive Officer of SG, dated the Closing Date, certifying to such effect.
(d) The Company shall have received from SG certified copies of the resolutions of its Board of Directors and shareholders approving and adopting this Agreement, the Merger and the transactions contemplated hereby.
(e) From the date of this Agreement through the Effective Time, there shall not have occurred any event that has had, or would be reasonably likely to have, a material adverse effect on SG or its ability to perform hereunder.
(f) SG shall have executed and delivered such obligations other documents and taken such other actions as the Company shall have reasonably requested.
6.3 Conditions to the extent so assumedObligation of SG to Effect the Merger. Notwithstanding The obligations of SG to effect the foregoing, Merger shall be subject to the fulfillment at or prior to the Closing Date of the following conditions (unless waived by SG in accordance with the provisions of Section 7.8 hereof):
(a) if This Agreement and the Merger shall have been adopted and approved by Requisite Shareholder Approval.
(b) There shall not be pending or threatened by any governmental entity any suit, action or proceeding (i) challenging or seeking to restrain or prohibit the Company's interest in consummation of the Merger or any of the other transactions contemplated by this Agreement shall be assigned as a whole or in undivided partseeking to obtain from SG or any of its affiliates any damages that are material to any such party, (ii) seeking to prohibit or limit the Company's interest in ownership or operation by the Facilities shall be leased as a whole Company or in undivided part and the term any of such leasehold or the term its Subsidiaries of any extension material portion of the business or extensions thereof at the option assets of the Company shall extend beyond the maturity date or any of the Bonds its Subsidiaries or (iii) seeking to impose limitations on the ability of SG or any shareholder of SG to acquire or hold, or exercise full rights of ownership of, any shares of Company Common Stock, including, without limitation, the right to vote the Company Common Stock on all matters properly presented to the shareholders of the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and .
(bc) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the The Company shall have performed, in all material respects, all of its obligations contained herein that are required to be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery performed by the Company at or prior to the Authority Closing Date, and the Trustee of SG shall have received a certificate of an Independent Expert executive officer of the Company, dated the Closing Date, certifying to such effect.
(as hereinafter definedd) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed The representations and warranties of by the Company contained in this Agreement and in any document delivered in connection herewith (disregarding any qualification contained therein with respect to materiality and Material Adverse Effect) shall be true and correct as of the same Person Closing Date (except those representations and warranties that address matters as of a particular date, which shall remain true and correct as of such date) with only such exceptions as would not in the same or aggregate have a related transactionMaterial Adverse Effect on the Company. SG shall have received a certificate of an executive officer of the Company, stating dated the Closing Date, certifying to such effect.
(e) SG shall have received from the Company certified copies of the resolutions of the Company’s Board of Directors and shareholders approving and adopting this Agreement and the Merger and the transactions contemplated hereby.
(f) SG shall have received evidence, in form and substance reasonably satisfactory to it, that such rightsall material licenses, interestspermits, assets and/or properties so described constitute facilities for the generationconsents, transmission and/or distribution approvals, authorizations, qualifications and orders of electric energy governmental entities and stating thatother third parties have been obtained without, in the opinion case of such Independent Expertthird parties, the Fair Value payment or imposition of any costs or additional obligations.
(as hereinafter definedg) From the date of such rightsthis Agreement through the Effective Time, intereststhere shall not have occurred any event that has had, assets and/or properties or would be reasonably likely to have, a Material Adverse Effect on the Person acquiring the same is not less than an amount equal to 10/7 of the sum of Company.
(xh) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations Each director of the Company representing indebtedness for borrowed money or for other than the deferred purchase price Principals shall have resigned from the Company’s Board of property which are being assumed by such Person; providedDirectors in writing, further, that after any such assumption, release and discharge effective as aforesaid, of the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company Effective Time.
(but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the i) The Company shall not make any assignment, lease or sale have executed and delivered such other documents and taken such other actions as provided in the immediately preceding paragraph unless it SG shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:reasonably requested.
Appears in 1 contract
Sources: Merger Agreement (Ecometry Corp)
Conditions. The Company's interest in this Agreement may obligation of The Chicago Corporation to act as Placement Agent pursuant to Section 1 hereunder and the Closing shall be assigned subject to the accuracy of the representations and warranties on the part of the Company herein set forth as a whole or in partof the date hereof and as of the Closing Date, and its interest in to the Facilities may be leasedaccuracy of the statements of officers of the Company made pursuant to the provisions hereof, sold, transferred or otherwise disposed of to the performance by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest)and of its obligations hereunder, and to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition the following additional conditions:
(a) The Registration Statement shall relieve have been declared effective by the Commission; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the Company from its primary liability for its obligations under Section 5.01 hereof or you, shall be contemplated by the Commission.
(b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee The legality and the Authority, all other obligations sufficiency of the Company hereunder to the extent authorization, issuance and sale or transfer and sale of the interest assignedShares hereunder, leased, sold, transferred or otherwise disposed of, the validity and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option form of the Company shall extend beyond certificates representing the maturity date of Shares, the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, execution and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term delivery of this Agreement, to and all corporate proceedings and other legal matters incident thereto, and the extent form of such assignment, lease, sale, transfer or other disposition, the Registration Statement and the Prospectus (except financial statements) shall have been approved by your special counsel.
(c) You shall not have advised the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge Registration Statement or the Prospectus or any amendment or supplement thereto, contains an untrue statement of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assignedfact, leasedwhich, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same opinion of your special counsel, is material or omits to state a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating thatfact which, in the opinion of such Independent Expertcounsel, is material and is required to be stated therein or necessary to make the Fair Value statements therein not misleading.
(as hereinafter definedd) of such rights, interests, assets and/or properties Subsequent to the Person acquiring execution and delivery of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations business or properties of the Company representing indebtedness or its subsidiaries, whether or not arising in the ordinary course of business, which, in the judgment of the Placement Agent, makes it impractical or inadvisable to proceed with the offering of the Shares as contemplated hereby.
(e) You shall have received from ▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Company, an opinion of counsel substantially in the form attached hereto as Exhibit B.
(f) A certificate of the chief executive officer and the chief financial officer of the Company, dated the Closing Date, to the effect that (i) each signer of such certificate has examined the Registration Statement and the Prospectus and (A) as of the date of such certificate, such documents are true and correct in all material respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading and (B) since the date of this Agreement no event has occurred as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading in any material respect; (ii) each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is dated true and correct; (iii) each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed, and each condition herein required to be complied with by the Company on or prior to the date of such certificate has been duly, timely and fully complied with; and (iv) the Commission has not issued an order preventing or suspending the use of the Prospectus or any preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the best knowledge of the respective signers, no proceedings for borrowed money that purpose have been instituted or are pending or contemplated under the Act. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the deferred purchase price Company as to the facts required in the immediately foregoing clauses (i) through (iv) of property which are being assumed by this subparagraph to be set forth in such Person; providedcertificate.
(g) At the time the Registration Statement is declared effective and also on the Closing Date, furtherthere shall be delivered to you a letter addressed to you, that after any such assumptionas Placement Agent, release and discharge as aforesaidfrom Ernst & Young LLP, independent accountants, the first one to be dated the effective date of the Registration Statement and the second one to be dated the Closing Date, to the effect set forth in Exhibit C. There shall not have been any change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the judgment of the Placement Agent to proceed with the offering of the Shares as contemplated hereby.
(h) At the time the Registration Statement is declared effective and also on the Closing Date, there shall be delivered to you a letter addressed to you, as Placement Agent, from ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, S.C., independent accountants, the first one to be dated the effective date of the Registration Statement and the second one to be dated the Closing Date, to the effect set forth in Exhibit D.
(i) At the time the Registration Statement is declared effective and also on the Closing Date, there shall be delivered to you a letter addressed to you, as Placement Agent, from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, independent accountants, the first one to be dated the effective date of the Registration Statement and the second one to be dated the Closing Date, to the effect set forth in Exhibit E.
(j) The fees and out-of-pocket expenses payable by the Company may again assume such obligations under pursuant to Section 5.01 hereof4(g) of this Agreement, shall have been paid in whole or in part, at any time and from time to time, andfull, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, that the Company shall have received an invoice therefor at any time prior to the Closing Date.
(k) All conditions to the closing of the Chesapeake Acquisition have been satisfied or waived, and the Company and Chesapeake shall have notified you that they intend to complete the closing of the Chesapeake Acquisition on the Closing Date concurrently with or immediately after the Closing of the sale of the Shares pursuant to this Agreement.
(l) Such further certificates and documents as you may reasonably request.
(m) The Escrow Agent shall have received Funds from prospective investors for the purchase of all of the Shares. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory to you and to ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special counsel to the Placement Agent, which approval shall not make be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any assignmentof the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement, lease or sale as provided the Placement Agent shall have no obligation to transfer any funds representing the purchase price for the Shares to the Company and may, in its sole discretion, return any such funds to prospective Investors in the immediately preceding paragraph unless it Offering. Any such return of funds to prospective Investors shall have furnished be without liability of the Placement Agent to the Authority and Company or to any shareholder, officer, director, employee or creditor of the Trustee an opinion Company. Notice of Bond Counsel such return of funds to prospective Investors shall be given to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the FacilitiesCompany in writing, or any interest therein, the Company may, at its option, cause such element by telegraph or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority telephone and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:confirmed in writing.
Appears in 1 contract
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) The obligations of each party to consummate the Stock Purchase and to effectuate the Closing are subject to the satisfaction or waiver of the following conditions at the time of the Closing:
(i) no judgment, order, injunction or decree (“Judgment”) issued by any United States federal, state, local or other government, or any United States court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality (a “Governmental Entity”) of competent jurisdiction or statute, law, rule or regulation (“Law”) or other legal prohibition (collectively, “Legal Restraints”) prohibiting the consummation of the Stock Purchase shall relieve be in effect;
(ii) this Agreement shall not have been terminated in accordance with its terms; and
(iii) the Company from its primary liability for its obligations waiting period (and any extension thereof) under the HSR Act (as defined in Section 5.01 hereof 2.02(b)) in respect of the Stock Purchase shall have lapsed or been terminated.
(b) shall be made unless Theobligations of the assignee, lessee, purchaser or other transferee, as Buyer to consummate the case may be, prior Stock Purchase and to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form effectuate the Closing are subject to the Trustee and the Authority, all other obligations satisfaction or waiver of the Company hereunder to following conditions at the extent time of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if Closing:
(i) the Company's interest representations and warranties of each Seller set forth in this Agreement Article II shall be assigned true and correct as of the date hereof and as of the Closing, except to the extent any such representation and warranty expressly relates to a whole specified date (in which case on and as of such specified date), and (other than the representations and warranties set forth in Section 2.03, which shall be true and correct in all respects at such time and at the Closing) except as would not, individually or in undivided partthe aggregate, prevent, materially delay or materially impede the Closing;
(ii) the Company's interest each Seller shall have performed in the Facilities shall all material respects all obligations to be leased performed by it as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or time under this Agreement;
(iii) the Company's interest in the Facilities Buyer shall be sold, transferred or otherwise disposed of as have received a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations certificate from each of the Company under Section 5.01 hereof for the remaining term Sellers, signed on behalf of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge each of the Company pursuant to clause (b) shall be conditioned upon the delivery Sellers by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assignedtheir respective authorized signatory, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will conditions set forth in Section 1.03(b)(i) and Section 1.03(b)(ii) have been satisfied; and
(iv) the Buyer shall have received executed copies of IRS Form W-9 certifying that each Seller is exempt from U.S. federal backup withholding tax and the affidavit of each Seller that such Seller is not impair a “foreign person” within the validity under the Act meaning of Section 1445 of the Bonds United States Internal Revenue Code of 1986, as amended, in substantially the form of Exhibit B.
(c) The obligations of each Seller to consummate the Stock Purchase and will not adversely affect to effectuate the exclusion of interest on Closing are subject to the Bonds from gross income for federal tax purposes. After any lease, sale, transfer satisfaction or other disposition of any element or unit waiver of the Facilitiesfollowing conditions at the time of the Closing
(i) the representations and warranties of the Buyer set forth in Article III shall be true and correct as of the date hereof and as of the Closing, except to the extent any such representation and warranty expressly relates to a specified date (in which case on and as of such specified date), and except as would not, individually or any interest thereinin the aggregate, prevent, materially delay or materially impede the Company mayClosing;
(ii) the Buyer shall have performed in all material respects all obligations to be performed by it as of such time under this Agreement;
(iii) the Sellers shall have received a certificate from the Buyer, at executed by its option, cause such element or unit, or interest thereinauthorized signatory, to no longer be deemed to be part of the Facilities for effect that the purposes of this Agreement by delivering to the Authority conditions set forth in Section 1.03(c)(i) and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:1.03(c)(ii) have been satisfied.
Appears in 1 contract
Conditions. The Company's interest in this Agreement may be assigned as a whole or in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form Conditions Precedent to the Trustee and the Authority, all other obligations Obligation of the Company to Sell the Assets. The obligation of the Company to sell the Assets hereunder is subject to the extent reliance and satisfaction or waiver (with prior written notice to Purchaser) by the Company, at or before the Closing, of each of the interest assigned, leased, sold, transferred or otherwise disposed of, following conditions:
(1) Accuracy of the Purchasers' Representations and the Company shall be released Warranties. The representations and warranties of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest each Purchaser in this Agreement shall be assigned true and correct in all material respects as a whole of the date when made and as of the Closing Date;
(2) Performance by the Purchasers. Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or in undivided partcomplied with by such Purchaser at or prior to the Closing; and
(3) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents.
(iib) Conditions Precedent to the Obligation of the Purchaser to Purchase the Assets. The obligation of Purchaser hereunder to acquire and pay for the Assets is subject to the satisfaction or waiver by such Purchaser, at or before the Closing, of each of the following conditions:
(1) Accuracy of the Company's interest in the Facilities shall be leased as a whole or in undivided part Representations and the term of such leasehold or the term of any extension or extensions thereof at the option Warranties. The representations and warranties of the Company set forth in this Agreement and in the Registration Rights Agreement shall extend beyond the maturity date be true and correct in all respects as of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of date when made and as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Closing Date;
Appears in 1 contract
Conditions. The Company's interest obligations of the Initial Purchaser to purchase the Notes under this Agreement are subject to the satisfaction of each of the following conditions or waiver thereof by the Initial Purchaser:
(a) All the representations and warranties of the Company contained in this Agreement may and in each of the Documents and the Perfection Certificate shall be true and correct as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchaser) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after due inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Company after due inquiry, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) would not, individually or in the aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information are given in the Final Offering Circular, there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change, nor shall any notice have been given of any potential or intended change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The proceeds of the Offering will be used in the manner described in the Final Offering Circular under the caption "Use of Proceeds."
(h) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by (1) the Chairman or Vice Chairman of the Company and (2) the principal financial or accounting officer of the Company, on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied at or prior to the Closing Date, (c) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), no event or events have occurred, no information has become known nor does any condition exist that, individually or in the aggregate, would have a Material Adverse Effect, (d) since the date of the most recent financial statements in the Final Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Final Offering Circular or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, that are material to the Company, taken as a whole whole, or entered into any transactions not in the ordinary course of business that are material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and there has not been any change in the Capital Stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and (e) the sale of the Notes has not been enjoined (temporarily or permanently).
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchaser may reasonably request.
(iii) a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Company substantially in the form previously approved by the Initial Purchaser.
(iv) the opinion of ▇▇▇▇▇▇ Beach LLP, counsel to the Company, dated the Closing Date, substantially in the form of Exhibit A attached hereto.
(v) an opinion, dated the Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & Maw LLP, counsel to the Initial Purchaser, in form satisfactory to the Initial Purchaser covering such matters as are customarily covered in such opinions.
(i) The Initial Purchaser shall have received from PricewaterhouseCoopers LLP, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchaser, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (B) a customary "bring down" comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchaser, to the effect that PricewaterhouseCoopers LLP reaffirms the statements made in its letter furnished pursuant to clause (A) above.
(j) Each of the Documents shall have been executed and delivered by all parties thereto, and the Initial Purchaser shall have received a fully executed original of each Document.
(k) The Initial Purchaser shall have received copies of all opinions, certificates, letters and other documents delivered under or in partconnection with the Offering or any transaction contemplated in the Documents.
(l) The Initial Purchaser shall have received the Final Offering Circular, and its interest the terms of each Document shall conform in all material respects to the description thereof in the Facilities may Final Offering Circular.
(m) None of the parties to any of the Documents shall be leased, sold, transferred in breach or otherwise disposed default of by any of their respective obligations in any material respect.
(n) The Collateral Agent shall have received (with a copy for the Initial Purchaser) on the Closing Date:
(i) appropriately completed copies of Uniform Commercial Code financing statements naming the Company as a whole debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in part the reasonable opinion of the Collateral Agent and its counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the Security Agreement;
(whether an interest ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (other than Permitted Liens) of any Person in any collateral described in any Security Agreement previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Agreement, other than such financing statements that evidence Permitted Liens);
(iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent; and
(v) the Collateral Agent and its counsel shall be satisfied that (i) the Lien granted to the Collateral Agent, for the benefit of the Secured Parties in the collateral described above is of the priority described in the Final Offering Circular; and (ii) no Lien exists on any of the collateral described above other than the Lien created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to a Collateral Agreement, in each case subject to the Permitted Liens.
(o) All Financing Statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (o)(i) and (ii) above (collectively, the "Filing Statements") shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Collateral Agent (the "Filing Agent"). The Filing Agent shall have acknowledged in a specific element writing reasonably satisfactory to the Collateral Agent and its counsel (i) the Filing Agent's receipt of all Filing Statements, (ii) that the Filing Statements have either been submitted for filing in the appropriate filing offices or unit or an undivided interest), to any Person; provided, however, will be submitted for filing in the appropriate offices within ten days following the Closing Date and (iii) that no the Filing Agent will notify the Collateral Agent and its counsel of the results of such assignment, lease, sale, transfer or other disposition submissions within 30 days following the Closing Date.
(ap) The Initial Purchaser shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, have received prior to or simultaneously contemporaneously with such assignment, lease, sale, transfer the Closing a payoff letter from the lender or other disposition, assumes, by delivery of an instrument in writing satisfactory agent under the Company's existing secured credit facility in form and substance satisfactory to the Initial Purchaser.
(q) The Company shall have delivered the following documents and instruments with regard to each Premises prior to or contemporaneously with the Closing:
(i) to the Collateral Agent, as mortgagee, fully executed counterparts of Mortgages, each dated as of the Closing Date, duly executed by the Company, together with evidence of the completion (or satisfactory arrangements for the completion), of all recordings and filings of such Mortgage as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the properties to be covered thereby;
(ii) to the Collateral Agent, mortgagee's title insurance policies in favor of the Collateral Agent, as mortgagee for the ratable benefit of the Collateral Agent and the Secured Parties, in amounts and in form and substance and issued by insurers reasonably acceptable to the Collateral Agent, with respect to the property purported to be covered by such Mortgages, insuring that title to such property is marketable and that the interests created by the Mortgages constitute valid Liens thereon free and clear of all Liens, defects and encumbrances other than Permitted Liens, and such policies shall also include, to the extent available, a revolving credit endorsement and such other endorsements as the Collateral Agent shall reasonably request and shall be accompanied by evidence of the payment in full of all premiums thereon;
(iii) to the Collateral Agent, with respect to each of the covered Premises, the most recent survey of such Premises, together with either (A) an updated survey certification in favor of the Trustee and the AuthorityCollateral Agent from the applicable surveyor stating that, all other obligations based on a visual inspection of the Company hereunder to property and the extent knowledge of the interest assignedsurveyor, leased, sold, transferred there has been no change in the facts depicted in the survey or otherwise disposed of, and (B) an affidavit from the Company shall be released stating that there has been no change, other than, in each case, changes that do not materially adversely affect the use by the Company of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) Premises for the Company's interest in this Agreement business as so conducted, or intended to be conducted, at such Premises; and
(iv) to the Collateral Agent, with respect to each Premises that is the subject of such Mortgages, such filings, surveys, local counsel opinions and fixture filings, along with such other documents, instruments, certificates and agreements, as the Collateral Agent and its counsel shall reasonably request or that are required to be assigned as a whole delivered pursuant to the Indenture.
(r) The Initial Purchaser shall have received prior to or in undivided part, (ii) contemporaneously with the Closing executed Acknowledgments of Liens for each of the Company's interest Salt Handling and Storage Agreements in form and substance satisfactory to the Facilities Initial Purchaser.
(s) The Initial Purchaser shall be leased as a whole have received prior to or in undivided part contemporaneously with the Closing an executed Landlord Consent from Retsof Realty LLC and the term principals of such leasehold or the term of any extension or extensions thereof at the option Retsof Realty LLC in favor of the Company shall extend beyond Secured Parties confirming that the maturity date Secured Parties or their assignees will be entitled to receive a long term lease of the Bonds or (iii) "▇▇▇▇▇▇ Plant Site" in Retsof, NY on the Company's interest same financial terms as the existing lease for such premises in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, form and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, substance satisfactory to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Initial Purchaser.
Appears in 1 contract
Conditions. The Company's interest in this Agreement may be assigned This Amendment shall become effective as a whole or in part, and its interest in of the Facilities may be leased, sold, transferred or otherwise disposed date upon which all of by the Company as a whole or in part following conditions are satisfied (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition the "Effective Date"):
(a) Holder, the Subsidiary Guarantor and the Issuer shall relieve have executed and delivered an amendment to the Company from its primary liability for its obligations under Section 5.01 hereof or Indenture in the form attached hereto as Exhibit A (the "Indenture Amendment"), and such Indenture Amendment shall be in full force and effect.
(b) Holder shall be made unless the assignee, lessee, purchaser or other transferee, as the case may be, prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of have received duly executed Securities from the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of $30.0 million, in the Bonds then Outstanding form attached hereto as Exhibit B, for the account of Holder and dated on or before the Effective Date (ythe "Replacement Notes").
(c) the outstanding principal amount The representations and warranties of all other obligations each of the Company representing indebtedness for borrowed money Issuer and the Subsidiary Guarantor set forth in Section 2 above shall be true and correct as of the Effective Date and each of the Issuer and the Subsidiary Guarantor shall have complied with all of the agreements and satisfied all of the conditions on its part to be performed or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole satisfied hereunder on or in part, at any time and from time to time, and, prior to the extent of any such assumption by the Company Effective Date.
(but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it d) Holder shall have furnished to received on the Authority Effective Date a certificate, dated the Effective Date and signed by an officer of the Trustee an opinion of Bond Counsel Issuer, to the effect that the proposed assignmentrepresentations and warranties of the Issuer and the Subsidiary Guarantor contained in this Amendment are true and correct as of the Effective Date and that each of the Issuer and the Subsidiary Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Effective Date. The Issuer's officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(e) Holder shall have received on or before the Effective Date the following documents:
(i) counterparts hereof signed by each of the parties listed on the signature pages hereof (or, lease in the case of any party as to which an executed counterpart shall not have been received, receipt by Holder in form satisfactory to it of telegraphic, telex or sale will not impair other written confirmation from such party of execution of a counterpart hereof by such party);
(ii) copies of the certificate of incorporation or articles of incorporation, as applicable, of each of the Issuer and the Subsidiary Guarantor and certified to be true and complete as of a recent date by the appropriate governmental authority of the state of its incorporation;
(iii) copies of the bylaws or code of regulations, as applicable, of each of the Issuer and the Subsidiary Guarantor, certified by an officer of the Issuer or the Subsidiary Guarantor, as applicable, as of the Effective Date to be true and correct and in full force and effect as of the Effective Date;
(iv) copies of resolutions of the board of directors of each of the Issuer and the Subsidiary Guarantor approving and adopting this Amendment, the Indenture Amendment, the Replacement Notes, the transactions contemplated therein and authorizing execution and delivery thereof, certified by an officer of the Issuer or the Subsidiary Guarantor, as applicable, as of the Effective Date to be true and correct and in full force and effect as of the Effective Date;
(v) copies of (A) certificates of good standing, existence or its equivalent with respect to each of the Issuer and the Subsidiary Guarantor certified as of a recent date by the appropriate governmental authorities of the state of its incorporation;
(vi) an incumbency certificate of each of the Issuer and the Subsidiary Guarantor certified by a secretary or assistant secretary of each such entity to be true and correct as of the Effective Date; and
(vii) all documents that Holder may reasonably request relating to the existence of the Issuer and the Subsidiary Guarantor, the corporate authority for and the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes , the Indenture Amendment, the Replacement Notes, and any other matters relevant hereto, all in form and substance satisfactory to Holder in its sole good faith discretion.
(f) Holder shall have determined in its sole discretion that the terms of the Indenture Amendment and the Replacement Notes satisfy the criteria for a Qualifying Collateral Debt Asset as defined under the CVC Capital Indenture.
(g) Holder shall have received payment in full in immediately available funds of all reasonable expenses (including attorney's fees) incurred in connection with the negotiation and execution of this Section 7.01:Amendment and all other documents, instruments and agreements executed and/or delivered in connection herewith.
(h) Holder shall have received such other documents and certificates as are reasonably requested by Holder or its counsel.
Appears in 1 contract
Conditions. The obligation of any Agent, as agent of the Company's interest in this , at any time (“Solicitation Time”) to solicit offers to purchase the Notes, the obligation of any Agent to purchase Notes as principal pursuant to any Terms Agreement may be assigned as a whole or in partotherwise, and its interest the obligation of any other purchaser to purchase Notes hereunder or under any Terms Agreement shall in each case be subject: (1) to the condition that all representations and warranties of the Company herein are accurate as of each time specified in the Facilities may be leasedinitial paragraph of Section 1, soldas applicable, transferred or otherwise disposed (2) that all statements of by officers of the Company made in any certificate furnished pursuant to the provisions hereof are accurate (i) in the case of an Agent’s obligation to solicit offers to purchase Notes, at and as a whole of such Solicitation Time and (ii) in the case of any Agent’s or in part (whether an interest in a specific element or unit or an undivided interest)any other purchaser’s obligation to purchase Notes, to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition (a) shall relieve at and as of the time the Company from its primary liability for its obligations under Section 5.01 hereof or (b) shall be made unless accepts the assignee, lessee, purchaser or other transfereeoffer to purchase such Notes and, as the case may be, at and as of the related Time of Delivery or time of purchase; (3) to the condition that at or prior to such Solicitation Time, time of acceptance, Time of Delivery or simultaneously time of purchase, as the case may be, the Company shall have complied with such assignment, lease, sale, transfer all its agreements and all conditions on its part to be performed or other disposition, assumes, by delivery of an instrument in writing satisfactory in form satisfied hereunder; and (4) to the Trustee following additional conditions when and as specified:
(a) Prior to such Solicitation Time or corresponding Time of Delivery or time of purchase, as the Authoritycase may be:
(i) the Prospectus as amended or supplemented (including, all other obligations if applicable, the Pricing Supplement) with respect to such Notes shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the Securities Act; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission;
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act;
(iii) there shall not have occurred any change or any development in or affecting particularly the business or properties of the Company hereunder to or its subsidiaries which, in the extent judgment of the interest assignedapplicable Agent, leasedmaterially impairs the investment quality of the Notes; and
(iv) (A) trading generally shall not have been suspended on or by, soldas the case may be, transferred any of the New York Stock Exchange or otherwise disposed ofthe NASDAQ Stock Market, minimum or maximum prices for trading shall not have been fixed, or maximum ranges for prices for securities shall not have been required, on the New York Stock Exchange or the NASDAQ Stock Market, by such Exchange or by order of the Commission or any other governmental authority having jurisdiction; (B) trading in any securities of the Company shall not have been suspended by the Commission or a national securities exchange or in any over-the-counter market; (C) any major disruption of settlements of securities shall not have occurred and a general moratorium on commercial banking activities in New York shall not have been declared by either Federal or New York State authorities; or (D) there shall not have occurred any outbreak or escalation of hostilities in which the United States is involved, a declaration of war by Congress, any major act of terrorism against the United States, any other substantial national or international calamity or crisis or any other event or occurrence of a similar character if, in the judgment of such Agent or Agents or of such other purchaser, the effect of any such outbreak, escalation, declaration, calamity or other event or occurrence makes it impracticable or inadvisable to market the Notes on the terms and in the manner contemplated in the General Disclosure Package or the Prospectus as amended or supplemented at the Solicitation Time or at the time such offer to purchase was made. Promptly after the determination by any such Agent or other purchaser that it is impractical or inadvisable to market the Notes, such Agent or other purchaser shall notify the Company of such determination in writing; but the omission so to notify the Company shall not act to modify the rights of the Agent or other purchaser under this Section 6(a)(iv)(A).
(b) On the Commencement Date, and in the case of a purchase of Notes by an Agent as principal pursuant to a Terms Agreement or otherwise, if called for by the applicable Terms Agreement or other agreement, at the corresponding Time of Delivery, the General Counsel and Secretary of the Company, any Vice President and Assistant Secretary of the Company (it being understood that anyone giving an opinion on behalf of the Company shall be released of and discharged from such obligations an attorney licensed in Ohio or New York, as applicable) and/or Squire ▇▇▇▇▇▇ ▇▇▇▇▇ (US) LLP, Counsel to the extent so assumed. Notwithstanding the foregoingCompany, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest indicated in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it applicable Prospectus Supplement shall have furnished to the Authority relevant Agent or Agents their written opinion(s), dated as of the Commencement Date or Time of Delivery, as the case may be, in form and the Trustee an opinion of Bond Counsel substance satisfactory to such Agent or Agents, to the effect that:
(i) The Company has been duly incorporated and is an existing corporation in good standing under the laws of Ohio and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended; KeyBank is a duly organized and validly existing national banking association under the laws of the United States and continues to hold a valid certificate to do business as such; each of the Company and KeyBank has full corporate power and authority to conduct its business as described in the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus and is duly qualified to do business in each jurisdiction in which it owns or leases real property, except where the failure to be so qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company and its subsidiaries taken as a whole; and all of the outstanding shares of capital stock of KeyBank have been duly authorized and validly issued, are fully paid and non-assessable (exceptions to be specified) and (except as otherwise stated in the Registration Statement) are owned beneficially by the Company subject to no security interest, other encumbrance or adverse claim.
(ii) This Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Company.
(iii) The Notes conform in all material respects to the description thereof contained or incorporated by reference in the General Disclosure Package (if applicable), the Prospectus and the applicable Prospectus Supplement and such description conforms in all material respects to the rights set forth in the instruments, including the applicable Indenture, defining the same.
(iv) The Notes have been duly and validly authorized by the Company and, when executed, authenticated and delivered in accordance with the terms of the applicable Indenture and issued to and paid for by any purchaser of the Notes sold through an Agent as agent or any Agent as principal pursuant to any Terms Agreement or other agreement, will be entitled to the benefits of such applicable Indenture and will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms subject (A) to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, conservatorship, receivership or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity, enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the proposed assignmentrequirements that a claim with respect to any Notes denominated other than U.S. dollars (or a foreign currency, lease currency unit or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (E) to any applicable foreign governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency.
(v) Each of the Senior Indenture and the Subordinated Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, constitutes a valid and legally binding instrument of the Company enforceable in accordance with its terms subject (A) to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights or remedies of creditors, (B) to the effect of general principles of equity whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought, (C) to the unenforceability of any provision requiring the payment of attorney’s fees, except to the extent that a court determines such fees to be reasonable, (D) to the requirements that a claim with respect to any Notes denominated other than in U.S. dollars (or a foreign currency, currency unit or composite currency judgment in respect of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law and (E) to any applicable foreign governmental authority to limit, delay or prohibit the making of payments outside the United States or in a foreign currency, currency unit or composite currency; and the Indentures have been duly qualified under the Trust Indenture Act.
(vi) The issue and sale of the Notes and the execution and delivery by the Company of the Notes, the Indentures, this Agreement and any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Notes as principal (provided such Terms Agreement or other agreement has been executed and delivered in accordance with this Agreement and the Indentures) and the consummation of the transactions herein and therein contemplated will not impair the validity under the Act conflict with or result in a breach or violation of any of the Bonds terms and will not adversely affect provisions of, or constitute a default under, any statute, rule or regulation, any agreement or instrument known to such counsel to which the exclusion of interest on the Bonds from gross income for federal tax purposes. After Company or any lease, sale, transfer or other disposition of any element or unit subsidiary of the FacilitiesCompany is a party or by which it or any of them are bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, the Company’s Third Amended and Restated Articles of Incorporation or Third Amended and Restated Regulations, or any interest thereinorder known to such counsel of any court or governmental agency or body having jurisdiction over the Company.
(vii) The Company is not in violation of its Organizational Documents. No consent, approval, authorization, license or order of, registration of, or qualification, filing or registration with, any court or governmental agency or body is required for the issue and sale of the Notes or the consummation of the other transactions contemplated by this Agreement, any applicable Terms Agreement or other agreement pursuant to which an Agent purchases Notes as principal (provided such Terms Agreement or other agreement has been executed and delivered in accordance with this Agreement and the applicable Indenture) or the Indentures, except such as have been obtained under the Securities Act and the Trust Indenture Act or such as may be required under state securities or blue sky laws in connection with offers and sales of the Notes from the Company and with purchases of Notes.
(viii) The Registration Statement is effective under the Securities Act; any required amendment or supplement to each prospectus relating to the offered Notes (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of any Issuer Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission.
(ix) Such counsel is of the opinion that the statements set forth in the Prospectus under the caption “Material United States Tax Considerations,” insofar as they purport to constitute a summary of matters of U.S. federal tax law and regulations or legal conclusions with respect thereto, constitute an accurate summary of the matters set forth therein in all material respects.
(x) Such counsel is of the opinion that at the time the Registration Statement, including without limitation the Rule 430B Information, became effective or is deemed effective, and as of the date such opinion is delivered, the Registration Statement and the Prospectus, and at the time they were filed, each document incorporated by reference therein (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to therein or in any document incorporated by reference therein or any exhibits thereto, and the Statements of Eligibility of the Trustee on Form T-1 filed as an exhibit thereto, as to which we express no opinion), complied as to form in all material respects with the requirements of the Securities Act, the Exchange Act, the Trust Indenture Act and the respective rules thereunder; provided that in the case of an opinion delivered on the Commencement Date (other than in connection with a Terms Agreement), the opinion and beliefs set forth above shall be deemed not to cover information concerning an offering of particular Notes to the extent such information will be set forth in a supplement to the Basic Prospectus.
(xi) Such counsel has no reason to believe that (A) (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or any other data or information of a financial or accounting nature set forth or referred to therein or in any document incorporated by reference therein or in any exhibits thereto, and the Statements of Eligibility of the Trustee on Form T-1 filed as an exhibit thereto, as to which we express no opinion) the Registration Statement, including without limitation the Rule 430B Information, as of its effective date and each deemed effective date, and if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company maywith the Commission subsequent to the effectiveness of the Registration Statement, at its optionthe time of the most recent such filing, cause and as of the date such element opinion is delivered, contained any untrue statement of a material fact or unitomitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) (other than the financial statements, including the notes and schedules thereto and the audit reports thereon, or interest thereinany other data or information of a financial or accounting nature set forth or referred to therein or in any document incorporated by reference therein or in any exhibits thereto, to no longer be deemed to be part and the Statements of Eligibility of the Facilities for Trustee on Form T-1 filed as an exhibit thereto, as to which we express no opinion) the purposes Prospectus, as amended or supplemented, as of this Agreement by delivering to its date, at the Authority Commencement Date and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unitTime of Delivery, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:contained o
Appears in 1 contract
Conditions. The Company's interest (a) In addition to Purchaser’s absolute right to terminate this Contract for any reason at any time during the Review Period, the obligation of Purchaser under this Contract to purchase all of the Property from Seller (as set forth in this Agreement more detail below) is subject to the satisfaction of each of the following conditions on or prior to the Closing Date, any of which conditions may be assigned as a whole or waived in part, and its interest in the Facilities may be leased, sold, transferred or otherwise disposed of by the Company as a whole or in part (whether an interest in a specific element by Purchaser by written waiver at or unit or an undivided interest)prior to the Closing Date:
A. Title to the Real Property shall be good and marketable as required herein, free and clear of all liens and encumbrances and subject to no exceptions other than the Permitted Exceptions and the Escrow Agent shall be prepared, subject to payment of any required premium by Purchaser, to issue an owner’s title insurance policy pursuant to the Title Commitment insuring the title to the Real Property subject only to the Permitted Exceptions in the amount of the Purchase Price and with such endorsements as Purchaser shall reasonably require. Seller shall discharge all liens that encumber the Property at Closing which arise by or through Seller.
B. Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Contract to be performed by, observed and complied with on its part either on or prior to the Closing Date.
C. All of Seller’s representations and warranties contained herein shall be true and correct in all material respects as of the Closing Date.
D. The physical condition of the Property shall not have materially changed since the Effective Date.
E. All Key Tenants (as defined below) of the Leases shall be occupying the Property and operating its business in the leased premises and none of them shall be in default in the payment of rent or performance of any Personother material obligation.
F. Intentionally deleted.
G. Notwithstanding that certain of Seller's representations and warranties may be limited to the extent of actual knowledge of the facts stated therein, it shall be a condition precedent to Purchaser's obligation to conduct Closing that the facts stated in all such representations and warranties shall be correct in all material respects as of the time of Closing.
H. The consents referenced in Section 5(C) shall have been obtained on terms and conditions reasonably satisfactory to Purchaser.
I. Seller will deliver to Purchaser, prior to Closing, duly executed originals of estoppel certificates (the “Estoppel Certificates”) from Bi-Lo at Darien, Piggly Wiggly at ▇▇▇▇▇▇ Street, ▇▇▇▇▇▇ ▇▇▇▇▇▇ at Folly Crossing, Piggly Wiggly and Family Dollar at Georgetown Center, Bi-Lo at Ladson Crossing, Bi-Lo at Lake Greenwood, Bi-Lo at Lake ▇▇▇▇▇▇, Bi-Lo, Eggs Up and ▇▇▇▇▇▇ Island Pharmacy at Litchfield Market, Piggly Wiggly at Moncks Corner, Bi-Lo and Family Dollar at South Park, Piggly Wiggly at Ridgeland, Bi-Lo and Tidelands Bank at ▇▇▇▇▇▇ ▇▇▇▇, Piggly Wiggly at South Lake and Bi-Lo at St. ▇▇▇▇▇▇▇▇, hereinafter referred to as the “Key Tenants” and from other tenants representing at least seventy percent (70%) of the leased area of each of individual properties, exclusive of the area of each property leased to the Key Tenants under the Leases, in the form attached hereto as Exhibit “E” or upon any similar form required by any lender to Purchaser; provided, however, that no if a form of estoppel certificate is attached to or otherwise prescribed in an applicable Lease, or a tenant is a regional or national chain (or a franchisee thereof) and has a form of estoppel certificate that it routinely uses, then such assignment, lease, sale, transfer or other disposition (a) shall relieve the Company from its primary liability for its obligations under Section 5.01 hereof or (b) form shall be made unless deemed to be acceptable to Purchaser. Seller shall deliver all of the assignee, lessee, purchaser or other transferee, as Estoppel Certificates obtained from the case may be, tenants to Purchaser prior to or simultaneously with such assignmentClosing. To be acceptable to Purchaser, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company Tenant Estoppels shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities required form and each such Estoppel Certificate shall state no claim of offset by the tenant, no default by Seller under the Leases, no circumstance which would with the giving of notice or passing of time be leased a default by Seller under any Lease within the aforesaid time period and shall affirm the financial data as disclosed on the attached Exhibit “B”. Each Guarantor of a whole or in undivided part and Lease shall execute the term of such leasehold or the term of attached Guarantee Estoppel attached hereto as Exhibit “F” without any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent)amendments thereto; provided, however, that if a tenant is a regional or national chain and has a form of guarantor estoppel certificate that it routinely uses, then such form shall be deemed acceptable to Purchaser.
J. Seller will deliver to Purchaser, prior to Closing, duly executed originals of subordination, nondisturbance agreements (the release “SNDA Agreements”) from each Key Tenant under the Leases and discharge any tenant of the Company pursuant Real Estate that has recorded a memorandum of lease or short-form lease in the land records in the form attached hereto as Exhibit “G” or upon any similar form required by any lender to clause Purchaser; provided, however, that if a form of SNDA Agreement is attached to or otherwise prescribed in an applicable Lease, or a tenant is a regional or national chain and has a form of SNDA Agreement that it routinely uses, then such form shall be deemed to be acceptable to Purchaser. In the event any of the foregoing conditions to the Closing are not satisfied or waived in writing by Purchaser as of the Closing Date, then the following shall apply: With respect to the conditions set forth in Subsections (A), (B), (C), (D), (E), (G), and (H), in the event any such conditions are not satisfied by the Closing Date, Purchaser may either (i) unilaterally modify this Contract to exclude the shopping center(s) to which the unsatisfied condition relates (e.g., if litigation is filed with respect to the Folly Road Crossing Shopping Center, which litigation renders the representation and warranty in Section 5(E) not true and correct in all material respects as of the Closing Date, causing the non-satisfaction of the condition in Section 8(C), Purchaser may modify this Contract to exclude such shopping center) with a corresponding reduction in the Purchase Price based on the allocations set forth on Exhibit “C”, in which case Purchaser shall proceed to Closing on the remaining shopping centers and immediately return to Seller any documents, plans, studies or other materials related to the excluded Property that were provided by Seller to Purchaser, and shall provide Seller with copies of any reports generated by Purchaser with respect to the excluded Property in the exercise of its inspection rights under Section 3, (ii) waive in writing the satisfaction of any such conditions, in which event this Contract shall be read as if such conditions no longer existed, or (iii) if any such condition that is not satisfied by the Closing Date relates to any of the shopping centers known as Folly Road Crossing Shopping Center, Ladson Crossing Shopping Center, Litchfield Market Village, Shoppes at ▇▇▇▇▇▇ ▇▇▇▇, South Lake Pointe Shopping Center or ▇▇▇▇▇▇▇ South Park Shopping Center, then Purchaser may terminate this Contract, in which case the Deposit together with accrued interest shall be paid to the Purchaser, the Purchaser shall immediately return to Seller any documents, plans, studies or other materials related to the Property that were provided by Seller to Purchaser, and shall provide Seller with copies of any reports generated by Purchaser in the exercise of its inspection rights under Section 3; provided, however that, if such failure of condition also constitutes or is accompanied by a default by Seller hereunder, Purchaser shall have all rights and remedies as set forth in Section 13 herein. With respect to the conditions set forth in Subsections (I) & (J), in the event any such conditions are not satisfied by the Closing Date, Purchaser may either (i) unilaterally modify this Contract to exclude the shopping center(s) to which the unsatisfied condition relates with a corresponding reduction in the Purchase Price based on the allocations set forth on Exhibit “C”, in which case Purchaser shall proceed to Closing on the remaining shopping centers and immediately return to Seller any documents, plans, studies or other materials related to the excluded Property that were provided by Seller to Purchaser, and shall provide Seller with copies of any reports generated by Purchaser with respect to the excluded Property in the exercise of its inspection rights under Section 3, (ii) terminate this Contract, in which case the Deposit together with accrued interest shall be paid to the Purchaser, the Purchaser shall immediately return to Seller any documents, plans, studies or other materials related to the Property that were provided by Seller to Purchaser, and shall provide Seller with copies of any reports generated by Purchaser in the exercise of its inspection rights under Section 3, or (iii) waive in writing the satisfaction of any such conditions, in which event this Contract shall be read as if such conditions no longer existed; provided, however that, if such failure of condition also constitutes or is accompanied by a default by Seller hereunder, Purchaser shall have all rights and remedies as set forth in Section 13 herein.
(b) shall be conditioned upon The obligation of Seller under this Contract to sell all of the delivery by the Company Property from Seller (as set forth in more detail below) is subject to the Authority and satisfaction of each of the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred following conditions on or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company prior to the same Person in the same or a related transactionClosing Date, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution any of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company conditions may again assume such obligations under Section 5.01 hereof, be waived in whole or in part, part by Seller by written waiver at any time and from time to time, and, or prior to the extent Closing Date:
A. The consents referenced in Section 5(C) shall have been obtained on terms and conditions reasonably satisfactory to Seller. With respect to condition (A), Seller may either (i) unilaterally modify this Contract to exclude the shopping center(s) to which the unsatisfied condition relates (e.g., if the consent of the ground landlord with respect to the Moncks Corner Shopping Center is not obtained, Seller may modify this Contract to exclude such shopping center) with a corresponding reduction in the Purchase Price based on the allocations set forth on Exhibit “C”, in which case Purchaser shall immediately return to Seller any documents, plans, studies or other materials related to the excluded Property that were provided by Seller to Purchaser, and shall provide Seller with copies of any reports generated by Purchaser with respect to the excluded Property in the exercise of its inspection rights under Section 3, or (ii) waive in writing the satisfaction of any such assumption conditions, in which event this Contract shall be read as if such conditions no longer existed.
(c) Notwithstanding any termination of this Contract or unilateral modification to exclude a shopping center which comprises the Property as allowed by the Company (but only to such extent)this Section 8, the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability indemnity contained in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority Section 3 (A) and the Trustee an opinion of Bond Counsel indemnity contained in Section 15 shall continue to apply with respect to all the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of Property as originally described in this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Contract.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
Conditions. The Company's interest obligations of the Initial Purchasers to purchase the Notes under this Agreement are subject to the satisfaction or waiver of each of the following conditions:
(a) All the representations and warranties of the Company contained in this Agreement may and in each of the Documents shall be assigned true and correct as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Company and each other party to the Documents (other than the Initial Purchasers) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to the Documents.
(b) No injunction, restraining order or order of any nature by a whole Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the Transactions; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Company after reasonable inquiry, be pending or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the Transactions. No Proceeding shall be pending or, to the knowledge of the Company after reasonable inquiry, threatened other than Proceedings that (A) if adversely determined could not, individually or in partthe aggregate, adversely affect the issuance or marketability of the Notes, and its interest (B) could not reasonably be expected, individually or in the Facilities aggregate, to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is given in the Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), there shall not have been any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any downgrading, suspension or withdrawal of, nor shall any notice have been given of any potential or intended downgrading, suspension or withdrawal of, or of any review (or of any potential or intended review) for a possible change that does not indicate the direction of the possible change in, any rating of the Company or any securities of the Company (including, without limitation, the placing of any of the foregoing ratings on credit watch with negative or developing implications or under review with an uncertain direction) by any “nationally recognized statistical rating organization” as such term is defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any adverse change, nor shall any notice have been given of any potential or intended adverse change, in the outlook for any rating of the Company or any securities of the Company by any such rating organization and (iii) no such rating organization shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than that on which the Notes were marketed.
(g) The Initial Purchasers shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed by a (1) Chairman, Chief Executive Officer, President or any Vice President and (2) the principal financial or accounting officer of the Company on behalf of the Company, to the effect that (a) the representations and warranties set forth in Section 4 hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Date, (b) the Company has obtained the MARAD Consent prior to the Closing Date, (c) the Company has complied with all agreements and satisfied all conditions on their part to be performed or satisfied at or prior to the Closing Date, (d) at the Closing Date, since the date hereof or since the date of the most recent financial statements in the Offering Circular (exclusive of any amendment or supplement thereto after the date hereof) no event or events have occurred, no information has become known to the Company nor does any condition exist that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, (e) since the date of the most recent financial statements in the Offering Circular (exclusive of any amendment or supplement thereto after the date hereof), other than as described in the Offering Circular or contemplated hereby, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, entered into any transactions not in the ordinary course of business that could reasonably be expected to have a Material Adverse Effect, and there has not been any change in the capital stock or long-term indebtedness of the Company that is material to the business, condition (financial or otherwise) or results of operations or prospects of the Company, and (f) the sale of the Notes has not been enjoined (temporarily or permanently) by a Government Authority with applicable jurisdiction;
(ii) a certificate, dated the Closing Date, executed by the Secretary of the Company, certifying such matters as the Initial Purchasers may reasonably request;
(iii) the opinions dated the Closing Date of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., General Counsel of the Company, with respect to matters listed on Exhibit C attached hereto, ▇▇▇▇▇ & Lardner LLP, counsel to the Company, with respect to the matters listed on Exhibit D attached hereto, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & Manner, P.C., counsel to the Company, with respect to the matters listed on Exhibit E attached hereto, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, counsel to the Company, with respect to the matters listed on Exhibit F attached hereto, and ▇▇▇▇▇▇▇▇▇, Poster & ▇▇▇▇▇▇, LLP, counsel to the Company, with respect to certain matters listed on Exhibit G attached hereto and such other opinions as the Initial Purchasers may reasonably request;
(iv) an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Initial Purchasers, in form satisfactory to the Initial Purchasers covering such matters as are customarily covered in such opinions.
(h) The Initial Purchasers shall have received from BDO ▇▇▇▇▇▇▇, LLP, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, with respect to the financial statements and certain financial information contained in the Final Offering Circular, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect that BDO ▇▇▇▇▇▇▇, LLP reaffirms the statements made in its letter furnished pursuant to clause (A).
(i) The Initial Purchasers shall have received from Deloitte & Touche LLP, independent auditors, with respect to the Company, (A) a customary comfort letter, dated the date of the Final Offering Circular, in form and substance reasonably satisfactory to the Initial Purchasers, and (B) a customary comfort letter dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers.
(j) Each of the Documents shall have been executed and delivered by all parties thereto, as applicable, and the Initial Purchasers shall have received a fully executed original of each such Document.
(k) The Initial Purchasers shall have received copies in form and substance reasonably satisfactory to them of all opinions, certificates, letters and other documents delivered or required to be leaseddelivered under or in connection with the Offering or any transaction contemplated in the Documents.
(l) The terms of each Document shall conform in all material respects to the description thereof in the Offering Circular.
(m) The Initial Purchasers shall have received a certificate of the Company’s Chairman of the Board, soldChief Executive Officer, transferred Chief Financial Officer or otherwise disposed Controller (i) attaching with respect to each Vessel (as set forth Exhibit B hereto), in each case dated as of a recent date, (A) a classification society certificate from the American Bureau of Shipping (or other reputable classification societies) indicating that the Vessels are classed in the highest classification and rating for vessels of the same age and type with such classification society without any outstanding conditions or recommendations affecting class other than those for which the time prescribed for curing the condition has not passed; and (B) a certificate of ownership evidencing the ownership of such Vessel by the Company, and (ii) certifying that, as of the Closing Date, (A) to the best of his knowledge, each such Vessel maintains the classification stated in the relevant classification society certificate, (B) except in the case of Vessels leased by the Company or a Subsidiary, each Vessel remains owned by the Company stated to be the owner of such Vessel in the relevant certificate of ownership; (C) that each Vessel is operationally seaworthy and in every way fit for its intended service; (D) that all necessary governmental or regulatory approvals, licenses and authorities which are necessary to the operation of each Vessel have been obtained from each applicable governmental authority; and (E) that each Vessel is insured in accordance with the provisions of the Fleet Mortgage and that requirements thereof in respect of such insurances have been complied with;
(n) The Trustee shall have received (with a copy for the Initial Purchasers):
(i) appropriately completed copies, which have been duly authorized for filing by the appropriate entity, of UCC Financing Statements naming the Company as a whole debtor and the Trustee as the secured party, or other similar instruments or documents to be filed under the Uniform Commercial Code in part all jurisdictions as may be necessary or, in the reasonable opinion of any of the Trustee, or the Initial Purchasers and their respective counsel, desirable to perfect the Liens of the Trustee pursuant to the Security Documents;
(whether an interest ii) terminations of filings under the Uniform Commercial Code necessary to release all Liens (other than Permitted Collateral Liens) of any person in a specific element any collateral described in the Security Documents previously granted by any person;
(iii) certified copies of Uniform Commercial Code Requests for Information or unit or an undivided interestCopies (Form UCC-11), or a similar search report certified by a party acceptable to the Trustee, dated a date reasonably near to the Time of Delivery, listing all effective Financing Statements which name either of the Companies (under its present name and any Person; providedprevious names) as the debtor, howevertogether with copies of such Financing Statements (none of which shall cover any collateral described in the Security Documents, other than such Financing Statements that evidence Permitted Collateral Liens);
(iv) such releases, reconveyances, satisfactions or other instruments as it may request to confirm the release, satisfaction and discharge in full of all mortgages, deeds of trust, security agreements, and other documents creating or evidencing Liens at any time delivered by either of the Companies to secure any Obligations in respect of either of the Companies’ existing indebtedness that is secured by assets constituting Collateral, duly executed, delivered and acknowledged in recordable form by the grantee named therein or its of record successors or assigns;
(v) documents from each of the lenders under either of the Companies’ existing indebtedness that is secured by assets constituting Collateral indicating the total amount of indebtedness payable to such lender and providing that such lender shall, upon payment to such lender of the full amount of the indebtedness payable to it, immediately release all Liens held by it and provide all related documentation necessary to evidence such release in form and substance satisfactory to the Trustee and its counsel;
(vi) confirmation reasonably satisfactory to the Initial Purchasers that the Fleet Mortgage has been accepted for recording by the National Vessel Documentation Center and that such office will issue a certificate of ownership or abstract of title evidencing that the Company Vessels subject to the Fleet Mortgage have been documented in the name of the Company and are subject to such Fleet Mortgage and to no other liens of record;
(vii) appraisals conducted in accordance with customary industry standards and practice with respect to each Vessel dated no earlier than December 18, 2003, satisfactory in form and scope to the Trustee and the Initial Purchaser;
(viii) all certificates or instruments representing or evidencing the Collateral (as such assignment, lease, sale, term is defined in the Security Agreement) in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Indenture;
(ix) a certificate of the Company’s insurance brokers in form and substances reasonably satisfactory to the Initial Purchasers confirming that all insurance requirements of the Security Documents are satisfied;
(x) with respect to Collateral that is titled vehicles or titled equipment, executed copies of all documents necessary to record on such titles a first priority Lien in favor of the Trustee;
(xi) duly executed and acknowledged real property mortgages in form and substance satisfactory to the Trustee covering the Collateral that is real property and fixtures, together with title policies and such other disposition documents related thereto as the Trustee may reasonably require; and
(axii) shall relieve such other documents, approvals, affidavits, opinions or certificates as the Company from its primary liability for its obligations under Section 5.01 hereof Trustee or (b) shall be made unless the assignee, lessee, purchaser Initial Purchasers may reasonably request in form and substance reasonably satisfactory to the Trustee or other transfereethe Initial Purchaser, as the case may be.
(o) All UCC Financing Statements and financing statement terminations, prior required pursuant to clauses (i) and (iii) of paragraph (n) above (collectively, the “Financing Statements”) shall have been delivered to CT Corporation System or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument another similar filing service company acceptable to the Trustee (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing reasonably satisfactory in form to the Trustee and the Authority, all other obligations of the Company hereunder to the extent of the interest assigned, leased, sold, transferred or otherwise disposed of, and the Company shall be released of and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if its counsel (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided partFiling Agent’s receipt of all Financing Statements, (ii) that the Company's interest Financing Statements have either been submitted for filing in the Facilities shall appropriate filing offices or will be leased as a whole or submitted for filing in undivided part the appropriate offices within ten days following the Closing and the term of such leasehold or the term of any extension or extensions thereof at the option of the Company shall extend beyond the maturity date of the Bonds or (iii) the Company's interest in the Facilities shall be sold, transferred or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume Filing Agent will notify the obligations Trustee and its counsel of the Company under Section 5.01 hereof for the remaining term of this Agreement, to the extent results of such assignment, lease, sale, transfer or other dispositionsubmissions within 30 days following the Closing.
(p) The Company shall have consummated the Acquisition, the Merger and the Container Purchase.
(q) The Company shall be released from and discharged of all liability in respect of such obligations to have obtained the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:MARAD Consent.
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Conditions. Section 6.1 Conditions to Each Party's Obligation to Effect the Merger. The Company's interest in this Agreement may respective obligation of each party to effect the Merger shall be assigned as a whole subject to the satisfaction at or in part, and its interest in prior to the Facilities may be leased, sold, transferred or otherwise disposed Effective Time of by the Company as a whole or in part (whether an interest in a specific element or unit or an undivided interest), to any Person; provided, however, that no such assignment, lease, sale, transfer or other disposition following conditions:
(a) this Agreement shall relieve have been adopted by the requisite vote of the holders of Company from its primary liability for Stock, if required by applicable law and the Certificate of Incorporation (provided that Parent shall comply with its obligations under in respect of the voting of Shares set forth in Section 5.01 hereof or 1.8(b));
(b) any waiting period applicable to the Merger under the HSR Act and other applicable antitrust or competition laws shall have expired or been terminated, as applicable;
(c) no judgment, statute, rule, regulation, order, decree or injunction shall have been enacted, promulgated or issued by any Governmental Entity or court which prohibits or restrains the consummation of the Merger; and
(d) Parent, the Purchaser or their affiliates shall have purchased shares of Company Stock pursuant to the Offer; provided that neither Parent nor the Purchaser may invoke this condition if Purchaser shall have failed to purchase shares of Company Stock so tendered and not withdrawn in violation of the terms of this Agreement or the Offer.
Section 6.2 Conditions to the Obligations of the Company to Effect the Merger. The obligation of the Company to effect the Merger shall be further subject to the satisfaction at or prior to the Effective Time of the following conditions:
(a) the representations and warranties of Parent and the Purchaser shall be true and accurate in all material respects as of the Effective Time as if made unless at and as of such time (except for those representations and warranties that address matters only as of a 36 41 particular date or only with respect to a specific period of time which need only be true and accurate as of such date or with respect to such period); and
(b) each of Parent and the assignee, lessee, purchaser Purchaser shall have performed in all material respects all of the respective obligations hereunder required to be performed by Parent or other transfereethe Purchaser, as the case may be, at or prior to or simultaneously with such assignment, lease, sale, transfer or other disposition, assumes, by delivery of an instrument in writing satisfactory in form the Effective Time.
Section 6.3 Conditions to the Trustee Obligations of Parent and the Authority, all other Purchaser to Effect the Merger. The obligations of Parent and the Company hereunder Purchaser to effect the Merger shall be further subject to the extent satisfaction at or prior to the Effective Time of the interest assigned, leased, sold, transferred or otherwise disposed of, following conditions:
(a) the representations and warranties of the Company shall be released true and accurate in all material respects as of the Effective Time as if made at and discharged from such obligations to the extent so assumed. Notwithstanding the foregoing, (a) if (i) the Company's interest in this Agreement shall be assigned as a whole or in undivided part, (ii) the Company's interest in the Facilities shall be leased as a whole or in undivided part and the term of such leasehold time (except for those representations and warranties that address matters only as of a particular date or the term only with respect to a specific period of any extension time which need only be true and accurate as of such date or extensions thereof at the option of with respect to such period); and
(b) the Company shall extend beyond the maturity date have performed in all material respects all of the Bonds or (iii) respective obligations hereunder required to be performed by the Company's interest in the Facilities shall be sold, transferred at or otherwise disposed of as a whole or in undivided part, and (b) in the event that the assignee, lessee, purchaser or other transferee shall assume the obligations of the Company under Section 5.01 hereof for the remaining term of this Agreement, prior to the extent of such assignment, lease, sale, transfer or other disposition, the Company shall be released from and discharged of all liability in respect of such obligations to the extent so assumed (but only to such extent); provided, however, that the release and discharge of the Company pursuant to clause (b) shall be conditioned upon the delivery by the Company to the Authority and the Trustee of a certificate of an Independent Expert (as hereinafter defined) describing the interests so assigned, leased, sold, transferred or otherwise disposed of, together with all other rights, interests, assets and/or properties assigned, leased, sold, transferred or otherwise disposed of by the Company to the same Person in the same or a related transaction, stating that such rights, interests, assets and/or properties so described constitute facilities for the generation, transmission and/or distribution of electric energy and stating that, in the opinion of such Independent Expert, the Fair Value (as hereinafter defined) of such rights, interests, assets and/or properties to the Person acquiring the same is not less than an amount equal to 10/7 of the sum of (x) the aggregate principal amount of the Bonds then Outstanding and (y) the outstanding principal amount of all other obligations of the Company representing indebtedness for borrowed money or for the deferred purchase price of property which are being assumed by such Person; provided, further, that after any such assumption, release and discharge as aforesaid, the Company may again assume such obligations under Section 5.01 hereof, in whole or in part, at any time and from time to time, and, to the extent of any such assumption by the Company (but only to such extent), the aforesaid assignee, lessee, purchaser or other transferee shall be released from and discharged of all liability in respect of such obligations. Anything herein to the contrary notwithstanding, the Company shall not make any assignment, lease or sale as provided in the immediately preceding paragraph unless it shall have furnished to the Authority and the Trustee an opinion of Bond Counsel to the effect that the proposed assignment, lease or sale will not impair the validity under the Act of the Bonds and will not adversely affect the exclusion of interest on the Bonds from gross income for federal tax purposes. After any lease, sale, transfer or other disposition of any element or unit of the Facilities, or any interest therein, the Company may, at its option, cause such element or unit, or interest therein, to no longer be deemed to be part of the Facilities for the purposes of this Agreement by delivering to the Authority and the Trustee the agreements or other documents required pursuant to Section 7.02 hereof together with an instrument signed by an Authorized Company Representative stating that such element or unit, or interest therein, shall no longer be deemed to be part of the Facilities for the purposes of this Agreement. For purposes of this Section 7.01:Effective Time.
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